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By Steven Fernandes on 2017-05-25 20:35:00

The 'Broken Matt Hardy' trademark application filed by Matt Hardy in March, has been given an initial refusal by the United States Patent and Trademark Office.  The trademark refusal was listed as:

"Registration is refused because the applied-for mark, as used on the specimen of record, identifies only the name of a particular character/personal name; it does not function as a service mark to identify and distinguish applicant’s services from those of others and to indicate the source of applicant’s services.  Trademark Act Sections 1, 2, 3 and 45, 15 U.S.C. §§1051-1053, 1127; see In re Hechinger Inv. Co. of Del., 24 USPQ2d 1057, 1059 (TTAB 1991); In re McDonald’s Corp., 229 USPQ 555, 555 (TTAB 1985); TMEP §§904.07(b), 1301.02(b).

The name of a character is registrable as a service mark only where the record shows that it is used in a manner that would be perceived by consumers as identifying the services in addition to identifying the character.  In re Fla. Cypress Gardens Inc., 208 USPQ 288, 292 (TTAB 1980); TMEP §1301.02(b). 

Personal names (actual names and pseudonyms) of individuals or groups function as marks only if they identify and distinguish the services recited and not merely the individual or group. In re Mancino, 219 USPQ 1047 (TTAB 1983) (holding that BOOM BOOM would be viewed by the public solely as applicant’s professional boxing nickname and not as an identifier of the service of conducting professional boxing exhibitions); In re Lee Trevino Enters., 182 USPQ 253 (TTAB 1974) (LEE TREVINO used merely to identify a famous professional golfer rather than as a mark to identify and distinguish any services rendered by him); In re Generation Gap Prods., Inc., 170 USPQ 423 (TTAB 1971) (GORDON ROSE used only to identify a particular individual and not as a service mark to identify the services of a singing group).

In this case, the two Youtube specimens merely name a wrestler.  The name of the wrestler, however, is not an indicator of source for the services.  Consumers would understand “TNA One Night Only” as the trademark for the wrestling service.  The “Moments of Glory” specimen does not appear to advertise the provision of any services at all.

The “Eventbrite” specimen appears to show proper service mark use and function as a service mark.  However, the specimen is unacceptable because it is unclear that it shows “use in commerce” that the United States can regulate as the specimen advertises an event in Cork County, Ireland and not in the United States.  15 U.S.C. §1127; TMEP §§901.03, 901.04. 

Applicant may respond to this refusal by submitting a substitute specimen or amending applicant’s basis to intent to use under Section 1(b) for each applicable international class."

Hardy has six months from today to respond or the application will be abandoned. . 

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