Health Fusion Brands, Inc.

Trademark Trial and Appeal Board

May 10, 2011

No. 77691724 (T.T.A.B. May. 10, 2011)

Mailed:
May 10, 2011
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Health Fusion Brands, Inc.
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Serial No. 77691724
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Molly B. Markley of Young Basile Hanlon & MacFarlane P.C.
for Health Fusion Brands, Inc.

Kyle Christopher Peete, Trademark Examining Attorney, Law
Office 112 (Angela Bishop Wilson, Managing Attorney).
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Before Seeherman, Bucher and Lykos, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Health Fusion Brands, Inc. seeks registration on the
Principal Register of the mark EPIC MISSION (in standard
character format) for services recited in the application as
“distributorship services in the field of nutritional
beverages” in International Class 35.1

1 Application Serial No. 77691724 was filed by RWI Resources,
LLC on March 16, 2009, based upon allegations of first use
anywhere and first use in commerce at least as early as March 11,
2009. The application was assigned from RWI Resources LLC, a
limited liability company of Michigan, to Health Fusion Brands,
Inc., a Georgia corporation, on December 31, 2010. United States
Patent and Trademark Office Assignment Branch, Reel 4482/
Frame 0758.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77691724
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The Trademark Examining Attorney refused registration
on the ground that the substitute specimen submitted by
applicant on December 7, 2009 does not show use of the
applied-for mark in connection with the distributorship
services, as recited. Sections 1, 2, 3 and 45 of the
Trademark Act, 15 U.S.C. §§ 1051, 1052, 1053 and 1127;
37 C.F.R. §§ 2.56(a) and (b)(2).
After the Trademark Examining Attorney made the refusal
final, applicant appealed to this Board.
We affirm the refusal to register.
Trademark Rule 2.56 provides, inter alia, that:
(a) An application under section 1(a) of the
Act, an amendment to allege use under § 2.76,
and a statement of use under § 2.88 must each
include one specimen showing the mark as used
on or in connection with the goods, or in the
sale or advertising of the services in
commerce.
***
(b)(2) A service mark specimen must show the
mark as actually used in the sale or
advertising of the services.

Section 45 of the Trademark Act, 15 U.S.C. § 1127,
defines “use in commerce” as follows:
Use in commerce. The term “use in commerce”
means the bona fide use of a mark in the
ordinary course of trade, and not made merely
to reserve a right in a mark. For purposes
of this Act, a mark shall be deemed to be in
use in commerce —-
***
(2) on services when it is used or displayed
in the sale or advertising of services and
the services are rendered in commerce, or the
services are rendered in more than one State
Serial No. 77691724
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or in the United States and a foreign country
and the person rendering the services is
engaged in commerce in connection with the
services.

Implicit in this statutory definition is a requirement
that there be a direct association between the mark and the
services, i.e., that the mark be used in such a manner that
it would readily be perceived as identifying the source of
the services. Applicant has concentrated its arguments on
the acceptability of its substitute specimen (a two-page
brochure reproduced below), so we will do likewise.
Applicant argues that the mark is used prominently on
the first page of the brochure followed by the informal
service mark indicator (“SM”). On the bottom of the second
page, after detailed nutritional information about the
Serial No. 77691724
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beverages, the brochure supplies applicant’s contact
information.
While the exact nature of applicant’s proffered
services does not need to be specified in the specimen,
there must be something which creates in the mind of the
prospective purchaser an association between the mark and
the service activity. It is not enough that applicant has
simply used the term EPIC MISSION in some type of
literature which it may distribute. Rather, it is well
settled that an applicant must use the alleged service mark
in connection with the sale or advertising of the services
for which registration is sought, and in a manner which will
identify to consumers that this is a service mark for the
named distributorship services. In re Advertising &
Marketing, 821 F.2d 614, 2 USPQ2d 2010 (Fed. Cir. 1987),
citing In re Universal Oil Prods. Co., 476 F.2d 653,
177 USPQ 456 (CCPA 1973). Whether a mark sought to be
registered as a service mark has been used “to identify” the
services specified in the application is a question of fact
to be determined on the basis of the specimens submitted by
applicant, together with any other evidence of record. See
In re Duratech Industries Inc., 13 USPQ2d 2052 (TTAB 1989).
Serial No. 77691724
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In the case at hand, applicant’s use of EPIC MISSION,
as shown in the identified specimen, is not in connection
with the sale or advertising of distributorship services.
There is absolutely no reference to the alleged
distributorship services that might create an association,
direct or otherwise, between the words EPIC MISSION and
the services set forth in the application. See In re DSM
Pharmaceuticals Inc., 87 USPQ2d 1623 (TTAB 2008)
(LIQUIDADVANTAGE as shown on brochure does not function as
service mark to indicate source of applicant’s custom
manufacturing services inasmuch as the specimen nowhere
shows direct association between use of the proposed mark
and the services for which registration is sought); In re
wTe Corp., 87 USPQ2d 1536 (TTAB 2008) (specimen comprising a
packaging label affixed to boxes being mailed to customers,
on which the SPECTRAMET mark was used on a return address
found unacceptable because it did not show a connection
between the mark and the recited contract processing of
metals); and In re Johnson Controls, Inc., 33 USPQ2d 1318
(TTAB 1994) (labels affixed to
packaging of valves do not show use
of IRON VALVE EXPRESS mark for
custom manufacture of valves).
Serial No. 77691724
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Moreover, the record contains no other evidence,
including applicant’s original specimen, that the mark
sought to be registered is used in advertising or rendering
the distributorship service of applicant. In fact, as noted
by the Trademark Examining Attorney, to the extent that
applicant is selling its own Riptide Epic beverages, it is not
even clear from this record that applicant is engaged in
distributorship services for the benefit of others.
Decision: Inasmuch as the file contains no specimens
showing the proposed mark used to identify and distinguish
applicant’s distributorship services, the refusal of
registration under Section 1, 2, 3 and 45 of the Lanham Act
is hereby affirmed.