Boulevard Media, Inc.

Trademark Trial and Appeal Board

Jun 12, 2002

No. 75832237 (T.T.A.B. Jun. 12, 2002)

6/12/02 Paper No. 14
GDH/gdh

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Boulevard Media, Inc.
________

Serial No. 75/832,237
_______

Dana Robinson of Quirk & Tratos for Boulevard Media, Inc.

Virginia T. Isaacson, Trademark Examining Attorney, Law Office
110 (Chris A.F. Pedersen, Managing Attorney).
_______

Before Hohein, Chapman and Wendel, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

Boulevard Media, Inc. has filed an application to
register the phrase "CASUAL SEX DATELINE" for "electronic voice
messaging services, namely, recording, storing and subsequent
transmission of voice messages by telephone and telephone
telecommunications services."1

1 Ser. No. 75/832,237, filed on October 26, 1999, which alleges a date
of first use anywhere and in commerce of November 26, 1998.

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 75/832,237
2
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the
basis that, when used in connection with applicant's services,
the phrase "CASUAL SEX DATELINE" is merely descriptive of them.
Applicant has appealed. Briefs have been filed,2 but
an oral hearing was not requested. We affirm the refusal to
register.
It is well settled that a phrase or term is considered
to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it forthwith
conveys information concerning any significant ingredient,
quality, characteristic, feature, function, purpose, subject
matter or use of the goods or services. See, e.g., In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987) and In re
Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18
(CCPA 1978). It is not necessary that a phrase or term describe
all of the properties or functions of the goods or services in
order for it to be considered to be merely descriptive thereof;
rather, it is sufficient if the phrase or term describes a
significant attribute or idea about them. Moreover, whether a
phrase or term is merely descriptive is determined not in the
abstract but in relation to the goods or services for which
Ser. No. 75/832,237
3
registration is sought, the context in which it is being used or
is intended to be used on or in connection with those goods or
services and the possible significance that the phrase or term
would have to the average purchaser of the goods or services
because of the manner of such use. See In re Bright-Crest,
Ltd., 204 USPQ 591, 593 (TTAB 1979). Thus, "[w]hether consumers
could guess what the product [or service] is from consideration
of the mark alone is not the test." In re American Greetings
Corp., 226 USPQ 365, 366 (TTAB 1985).
Applicant, in its brief, contends that the phrase
"CASUAL SEX DATELINE," when used in connection with voice
messaging services, namely, the recording, storing and
subsequent transmission of voice messages by telephone and with
telephone telecommunications services, "is merely used to
suggest the interpersonal relationships that may develop as a
result of using Appellant's services" and, thus, is at most no
more than suggestive rather than merely descriptive of such
services.3 In particular, applicant argues among other things
that (emphasis in original):

2 As indicated in the Board's May 15, 2002 order, the reply brief filed
by applicant on March 25, 2002 was untimely under Trademark Rule
2.142(b)(1) and accordingly has not been considered.
3 Applicant, for the first time in its brief, refers to a number of
third-party registrations for marks which contain "the words 'CASUAL,'
'SEX,' 'DATELINE' or 'CASUAL DATELINE'" and contends that its "mark
should not be singled out as merely descriptive when there are a host
of third[-]party registrations that are as descriptive or more
descriptive than Appellant's mark." The Board, however, does not take
Ser. No. 75/832,237
4
Appellant's mark is not descriptive
because the use of CASUAL SEX DATELINE in
the appellant's mark does not actually
describe the underlying service.
Appellant's services are voice-messaging
services whereby consumers record, store,
and transmit messages among other
subscribers. Appellant does not arrange
dates, help individuals engage in sexual
activity, or sell or provide "casual sex."
The messages that are recorded can just as
easily relate to hobbies, sports, politics,
or movies. These are all topics that are
important to ask in order to form
interpersonal relationships with others.
Although adult-oriented subjects may be
recorded, it is impossible to engage in
"sex" on the phone. At most, Appellant's
mark is suggestive of the subsequent
relations that may transpire.

Applicant also asserts that its "mark does not
describe or [immediately] convey anything about the services

judicial notice of third-party registrations, see, e.g., In re Duofold
Inc, 184 USPQ 638, 640 (TTAB 1974), and the evidentiary information
set forth in applicant's brief concerning such registrations is
untimely under Trademark Rule 2.142(d) and thus is not properly of
record. Nevertheless, even if such information were to be considered,
it would not aid applicant factually or legally. This is because,
factually, there is no indication that the third-party registrations
did not issue on either the Supplemental Register or on the Principal
Register pursuant to the provisions of Section 2(f) of the Trademark
Act, 15 U.S.C. §1052(f) and, hence, the subject marks were not
regarded as merely descriptive. Legally, and in any event, the
presence of the third-party registrations would not be dispositive of
the issue of mere descriptiveness herein inasmuch as a phrase or term
which is merely descriptive is not made registrable simply because
other similar marks appear on the register. See, e.g., In re
Scholastic Testing Service, Inc., 196 USPQ 517 (TTAB 1977). Each
case, instead, must be determined on its own merits. See, e.g., In re
Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001) ["Even if some prior registrations had some characteristics
similar to [applicant's] application, the ... allowance of such prior
registrations does not bind the Board or this court."]; In re Broyhill
Furniture Industries Inc., 60 USPQ2d 1511, 1514 (TTAB 2001); and In re
Pennzoil Products Co., 20 USQP2d 1753, 1758 (TTAB 1991).
Ser. No. 75/832,237
5
actually provided" (emphasis in original) because, as it
improperly argues in the abstract, "one cannot ascertain how
Appellant's voice messaging service works, what equipment is
used to operate ... [such] or its quality, or the quality of the
message being recorded, stored, or transmitted by mere reference
to the mark." Moreover, although acknowledging that the
Examining Attorney has made of record evidence showing common or
everyday use, "as found in movie reviews, articles, and
billboards," of the terminology "CASUAL SEX," applicant insists
that "[n]one of these examples reference[s] to voice messaging
or telecommunication services" and that the Examining Attorney,
therefore, has failed to meet her burden of establishing that
the phrase "CASUAL SEX DATELINE" is merely descriptive of its
services. Applicant nevertheless undercuts such contention by
admitting, in its brief, that the record demonstrates that the
fact that "the term 'casual sex' is found in so many different
contexts and situations tends to show that it is not limited to
a static description or usage" and thus could indeed immediately
convey a merely descriptive significance when utilized in the
context of applicant's services.
Furthermore, while noting that the Examining Attorney
has "equated DATELINE with a 'date' or dating service for
arranging casual sex," applicant argues that "the term DATELINE
has a variety of meanings," such as "the name of a popular
Ser. No. 75/832,237
6
television show," "a term used in newspaper and printing to
indicate the date and place of a writing or issue" and "the
imaginary line through the Pacific ... to demark the passing of
one calendar day to another." Applicant urges, in view thereof,
that as a whole the phrase "CASUAL SEX DATELINE" is not merely
descriptive of its services because the term "DATELINE," while
"suggestive of 'dating' in so much as it happens to incorporate
the word 'date,' ... is not used as such a descriptor in common
parlance." Applicant adds, nonetheless, that (emphasis in
original):
Even if DATELINE is deemed descriptive
of dating, Appellant does not provide such
services. Rather, Appellant provides
recorded voice messages for subscribers and
is in no way a dating service. It does not
facilitate the meeting of individuals or
arrange encounters for individuals to engage
in sexual activity. That the Examining
Attorney asserts that such conduct will
result after using Appellant's services is
not relevant to the [descriptiveness of the]
mark. The fact that the mark is suggestive
of some activity after the fact proves
Appellant's position.

Finally, applicant urges that although the phrase
"CASUAL SEX DATELINE," when used in connection with its voice
messaging and telecommunications services, "may conjure up some
type of interpersonal relationship between people, it requires
imagination to determine the exact nature of how Appellant's
services provide this." Because such interpersonal
Ser. No. 75/832,237
7
relationships could be provided through "a consumer video dating
service, communications by letter or e-mail, or a pre-arranged
singles event," applicant maintains that its "mark requires
consumers to use their imagination to identify it with voice
messaging and telecommunication services ...."
We concur with the Examining Attorney, however, that
as stated in her brief, the phrase "CASUAL SEX DATELINE," when
used in connection with applicant's "electronic voice messaging
services, namely, recording, storing and subsequent transmission
of voice messages by telephone and telephone telecommunications
services," immediately describes, without speculation or
conjecture, "the most notable characteristics of the services,"
namely, that the applicant's services constitute a telephone
dateline which "involve[s] consumers listening to stored
messages or recording messages about casual sex." As the
Examining Attorney notes, the "NEXIS" articles and Internet
website excerpts of record, representative samples of which are
set forth below, demonstrate that "the industry usage of the
words 'dateline' and 'casual sex' are descriptive" (emphasis
added):
"College women are confused about the
dating-mating game on campus, protesting
that they basically have two options:
'hooking up' briefly with a guy for casual
sex or just the opposite, ... virtually
living in each other's laps, according to a
Ser. No. 75/832,237
8
new 18-month study" -- Indianapolis Star,
July 31, 2001;

"[Her] motives are more elusive--as
time goes on, she sleeps with almost anyone,
having few reservations about casual sex
...." -- Washington Post, July 29, 2001;

"Promiscuous sex is unhealthy, said Dr.
Pinsky, adding that college women's
unhappiness over casual sex is 'what I've
been hearing over and over again.'" --
Washington Times, July 27, 2001;

"To those who feel that we are designed
to have one life-long sexual partner, ...
anything that makes casual sex more likely
is negative." -- Seattle Times, July 11,
2001;

"Still, this did not stop me from
having casual sex." -- Boston Globe, March
23, 2000 (article headlined: "SENSE ABOUT
SEX / ... SEX AT YOUNG AGE IS LATER
REGRETTED");

"Cybill (CBS). 'Littered with foul
language and sexual innuendo, it has
featured story lines about phone sex ....
Marriage is ridiculed and casual sex
condoned.'" -- Arkansas Democrat-Gazette,
June 17, 1997;

"The person accused of making the calls
admitted making 'one or two' calls to a date
line service." -- Milwaukee Journal
Sentinel, December 26, 1999;

"They feared she may have been abducted
by a man she met on the telephone date line
Live Links." -- Rocky Mountain News, October
30, 1999;

""A new twist on the telephone date-
line front. Amorous young Middle Eastern
males ... are forbidden to directly approach
members of the opposite sex in public.
Ser. No. 75/832,237
9
But as amorous young men always do,
they have found a way ..." -- Arkansas
Democrat-Gazette, April 30, 1999;

"The once thriving bar scene of the
1970s and early '80s has been discredited as
an inappropriate place to seek a mate, with
safety being the primary concern.
Meanwhile singles ads in newspapers,
dating services and telephone datelines have
filled the void." -- Chicago Daily Herald,
March 9, 1998;

"That was in 1994 when it acquired the
National Association of Information
Services, which represented the 900-number
telephone industry - the companies behind
all those phone-sex ads, psychic hotlines
and date lines." -- Washington Times,
December 29, 1997;

"Casual Sex-Dateline.com Indianapolis
(317) [phone no.] Use FREE code 9746 First
30 minutes Free ....
18+ Casual Dateline-Absolutely Adult
89¢/min." ....
....
GET SEX TONIGHT!! Instant live phone
connections with Indy men and women looking
to hook up for casual sex. .... Enter code
2181 317-[phone no.]" -- http://www.nuvo ...
html?&category=955, August 7, 2001;

"San Francisco's Casual Sex Dateline
Local People are On Line Now! 1-900-[phone
no.] 1.99/min 18+" -- http://www.spectator
... casualx.html, August 7, 2001;

"USA #1 Casual Sex Dateline! Ready
Babes 1-900-[phone no.]" --
http://www.shepherd ... 904.html, August 7,
2001;

"Dating Services
CASUAL SEX DATELINE ... Just call 503-
[phone no.]
....
Ser. No. 75/832,237
10
Casual Sex Dateline.com Women call free
Portland 503-[phone no.] ...." -- http://-
www.wweek ... Dating%Set, August 7, 2001;
and

Casual Sex Dateline - Enough said! Now
call 1-900--[phone no.]. $2.49/minute." --
http://www.csindy ... adultservices.html,
August 7, 2001.

We recognize that it is possible for a combination of
merely descriptive terms to result in a nondescriptive phrase or
designation. However, as stated by the Board in, for example,
In re Medical Disposables Co., 25 USPQ2d 1801, 1804 (TTAB 1992),
in order for such to be the case:
[T]he mere act of combining does not in
itself render the resulting composite a
registrable trademark. Rather, it must be
shown that in combination the
descriptiveness of the individual words
[and/or term] has been diminished, [such]
that the combination creates a term so
incongruous or unusual as to possess no
definitive meaning or significance other
than that of an identifying mark for the
goods [or services]. See In re Calspan
Technology Products, Inc., 197 USPQ 647
(TTAB 1977).

As the evidence set forth above makes plain, combining the
descriptive terms "CASUAL SEX" and "DATELINE" to form the phrase
"CASUAL SEX DATELINE" does not create a composite which is so
incongruous or unusual, or which otherwise possesses a new
meaning different from its constituent terms, as to possess no
definitive meaning or significance other than that of an
identifying mark for applicant's services. Instead, as
Ser. No. 75/832,237
11
succinctly noted by the Examining Attorney in her brief, the
record clearly indicates that such phrase unambiguously conveys
that "the salient feature of the applicant's services is that
they provide voice messaging services for interested individuals
to store and listen to messages about casual sex"; that is, they
constitute what is commonly known in the phone-sex industry as a
"dateline" with the subject matter thereof being "casual sex."
As the Examining Attorney further tellingly observes
in her brief:
[A] review of the specimens submitted by the
applicant shows that the forum in which the
applicant advertises ... [its] "casual sex
dateline" is classified under the column
"phone entertainment" and is surrounded by
other adult entertainment advertisements.
It is clear that the applicant is not
advertising in a hobby[, sports, political
or movie] magazine, but is targeting
individuals who seek adult entertainment in
a "casual sex dateline."

In particular, we note that besides applicant's ad for its
"CASUAL SEX DATELINE," which touts "[l]ive connections with
thousands of single local men and women every day," another of
the numerous "PHONE SEX" advertisements offers callers the
prospects of "CASUAL SEX WITH DENVER GIRLS," while a third ad
invites callers to "Denver's hottest dateline!" to "[r]ecord
your personal ad FREE!" and to "[l]isten to 100's of ads FREE!"
It is therefore plain, when viewed in the context of
applicant's electronic voice messaging services and telephone
Ser. No. 75/832,237
12
telecommunications services, that as maintained by the Examining
Attorney:
The phrase CASUAL SEX DATELINE ...
[merely] describes a feature of the
applicant's services. The totality of the
evidence supports this view. Moreover,
present and prospective customers of
applicant's services would require no
imagination, cogitation or gathering of
further information to perceive the merely
descriptive significance of the phrase
CASUAL SEX DATELINE.

Consequently, irrespective of applicant's assertions that while,
through the use of its services, "adult-oriented subjects may be
recorded, it is impossible to engage in 'sex' on the phone" and
that, "[a]t most, Appellant's mark is suggestive of the
subsequent relations that may transpire," there is simply no
doubt that the phrase "CASUAL SEX DATELINE" conveys forthwith
that applicant's service is a telephone dateline by which its
customers record, store and transmit voice messages on the
subject of casual sex. As such it is merely descriptive of
applicant's services within the meaning of the statute.
Decision: The refusal under Section 2(e)(1) is
affirmed.