All of you VINE Stars—you may think you are entertaining with your online performances, but according to the U.S. Patent and Trademark Office (PTO) you are not. In a decision denying an ex parte appeal, the PTO’s Trademark Trial and Appeal Board (TTAB) ruled that providing musical performances via internet streaming and webcasting sites does not qualify as entertainment services. In re Titan Music, Inc., Serial No. 77344197 (Aug. 20, 2014).

The Applicant, Titan Music, Inc., sought to register FAB AGAIN, for “entertainment in the nature of visual and audio performances, namely, musical band, rock group, gymnastic, dance, and ballet performances.” Among the specimens submitted in the application was a screen shot of a web page from which “FAB AGAIN” performances were available for listening and viewing (as well as purchase). The PTO Examiner found—and the TTAB agreed—that this specimen did not show service mark use: “[F]or entertainment services such as those rendered by a musical band, the performance must be live.” Titan, p. 9.

Both the Examiner and the TTAB relied on § 1402.11(g) of the Trademark Manual of Examining Procedure (TMEP), which does, indeed, state that, “For entertainment services such as those rendered by a musical group, the performance must be live . . . an identification such as ‘live and recorded performances by a musical group’ could not be accepted as a valid service identification unless the words ‘and recorded’ were deleted.” But that TMEP provision does not cite any case law, definition or other authority which would indicate why such a conclusion logically must be reached. And it is seemingly inconsistent with the PTO Acceptable Identification of Goods and Services Manual, which includes as permissible service descriptions: “Entertainment services, namely, providing podcasts in the field of {indicate field or subject matter}” and “Entertainment services, namely, providing video podcasts in the field of {indicate field or subject matter}.” A “podcast,” according to the Random House Dictionary, is “a digital audio or video file or recording, usually part of a themed series, that can be downloaded from a website to a media player or computer.” Unabridged, Source location: Random House, Inc. (accessed Sep. 5, 2014).

No matter—as it stands now, so long as your website accessible digital audio or video files are not music, you can obtain a service mark, but if you are performing on The Vine, YouTube, Spotify, SoundCloud or whatever becomes the best new thing, and you are a musical artist or group, you are not providing “entertainment services,” according to the PTO.