The Applicant sought to register the mark FAB AGAIN for "entertainment in the nature of visual and audio performances, namely, musical band, rock group, gymnastic, dance, and ballet performances." The Trademark Manual of Examining Procedure provides that entertainment services in the nature of performances, such as those rendered by a musical group, must be live. TMEP Section 1402.11(g). Thus, the specimens must show use in connection with a live performance before an audience. The Applicant submitted a webpage showing a music CD for sale, but with no reference to a live performance. When that specimen was rejected, the Applicant submitted a specimen showing a link to allow streaming audio from the album. The Examining Attorney also rejected that specimen.
The Board affirmed refusal of the application on the ground that the Applicant failed to submit an acceptable specimen showing use of the mark in connection with live performances. The specimens only showed use of the mark in connection with recorded entertainment, which is properly registered in Class 9 as a product.
In re Titan Music, Inc., Serial No. 77344197 (TTAB, August 20, 2014) [not precedential].