Serial No. 78/717,427 IN RE MICHAEL SONES James R. Menker, Holley & Menker, P.A., of… v. Shaw, Associate Solicitor, Office of the Solicitor, United States Patent

United States Court of Appeals for the Federal Circuit
2009-1140
(Serial No. 78/717,427)
IN RE MICHAEL SONES
James R. Menker, Holley & Menker, P.A., of Atlantic Beach, Florida, argued for
appellant.
Thomas V. Shaw, Associate Solicitor, Office of the Solicitor, United States Patent
and Trademark Office, of Arlington, Virginia, argued for the Director of the United States
Patent and Trademark Office. With him on the brief were Raymond T. Chen, Solicitor, and
Janet A. Gongola, Associate Solicitor.
Appealed from: United States Patent and Trademark Office
Trademark Trial and Appeal Board

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United States Court of Appeals for the Federal Circuit
2009-1140
(Serial No. 78/717,427)
IN RE MICHAEL SONES
Appeal from the United States Patent and Trademark Office, Trademark Trial and
Appeal Board.
__________________________
DECIDED: December 23, 2009
__________________________
Before NEWMAN, RADER, and LINN, Circuit Judges.
Opinion for the court filed by Circuit Judge LINN. Dissenting opinion filed by Circuit
Judge NEWMAN.
LINN, Circuit Judge.
This is an appeal from the Trademark Trial and Appeal Board (“Board”) involving
the requirements for an Internet specimen of use. Michael Sones appeals a final
decision of the Board denying his registration application for the mark “ONE NATION
UNDER GOD” for charity bracelets. In re Sones, Serial No. 78/717,427 (T.T.A.B. Sept.
30, 2008) (“Opinion”). Because the Board applied an incorrect legal standard to deny
Sones’ application, we vacate and remand.
BACKGROUND
Sones filed an intent-to-use application for his mark with the U.S. Patent and
Trademark Office (“PTO”) under 15 U.S.C. § 1051(b) (2006). The Board published it for
opposition, and after the opposition period expired, issued a notice of allowance on
August 15, 2006. On February 15, 2007, within six months of allowance as required by

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§ 1051(d), Sones submitted his Statement of Use with a specimen of use. Sones’
specimen consisted of the following two pages from a website:
J.A. 25-26. The submitted webpages bear the title “Beaches Chapel School Store” and
contain a product listing, “ONE NATION UNDER GODTM CHARITY BRACELET >> for
$2.00.” Under the listing, the following text appears: “ONE NATION UNDER GODTM ,
CHARITY BRACELET, CHOICE OF BLUE OR RED $2.00 EACH.” The pages also
display “shopping cart” functionality for online ordering, including buttons for “View Cart”
and “Add to Cart.” Next to the description is a shaded, square graphic that says only,
“Photo not availble [sic].”
The PTO rejected Sones’ Statement of Use in a non-final office action on June
11, 2007, noting that Sones’ specimen “does not show a picture of the goods in close
proximity to the mark.” U.S. Trademark Appl. Serial No. 78/717,427, Office Action, at 2
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(June 11, 2007). The office action informed Sones that he could submit a substitute
specimen to cure this defect. Sones submitted rebuttal arguments, but did not submit a
picture of his charity bracelets or a new textual description, apparently because he did
not possess such a specimen of use prior to the filing date of his Statement of Use, as
required by 37 C.F.R. § 2.59(b)(2) (2009). See Oral Arg. at 2:46-3:09, available at
http://oralarguments.cafc.uscourts.gov/mp3/2009-1140.mp3. On July 23, 2007, the
PTO issued a final office action affirming the rejection over Sones’ arguments.
Sones appealed to the Board. The Board affirmed, echoing the examiner’s
objections to Sones’ specimen of use: “Upon examination of the webpages, it is readily
apparent that they do not include a picture of the goods.” Opinion at 7.1 Sones
appealed according to 15 U.S.C. § 1071(a)(1), and we have jurisdiction under 28 U.S.C.
§ 1295(a)(4)(B).
DISCUSSION
“We review the [Board]’s conclusions of law de novo and affirm its findings of fact
if they are supported by substantial evidence.” In re Thrifty, Inc., 274 F.3d 1349, 1351
(Fed. Cir. 2001).
1 On September 30, 2008, the same day that the Board’s Opinion was mailed,
Sones filed another application to register “ONE NATION UNDER GOD” for “charity
bracelets.” U.S. Trademark Appl. Serial No. 77/582,593. In that application, Sones
alleged actual use in commerce at least as early as January 23, 2008, and submitted a
website specimen that showed a picture of bracelets. This application appears to be a
reaction to the Board’s Opinion and an effort to obviate the problem in the original
specimen, but with attendant loss of the September 21, 2005 constructive use date of
the application before us. See 15 U.S.C. § 1057(c). Because Sones has not
abandoned the present application, the issue before us is not mooted by the filing of the
second application, the propriety of which may depend on the result after remand in this
case and is not before us. See 37 C.F.R. § 2.48 (2009) (“Office does not issue
duplicate registrations.”).
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A trademark owner uses a mark “to identify and distinguish his or her goods,
including a unique product, from those manufactured or sold by others and to indicate
the source of the goods, even if that source is unknown.” 15 U.S.C. § 1127; see also
BellSouth Corp. v. DataNational Corp., 60 F.3d 1565, 1569 (Fed. Cir. 1995) (“The
primary function of a trademark is to identify and distinguish the goods or services of
one source from those sold by all others . . . .”). To ensure that the applicant uses the
mark in commerce for these purposes, the PTO requires the applicant to submit a
specimen of use “showing the mark as used on or in connection with the goods.” 37
C.F.R. § 2.56(a) (2009).
Sones argues that the Board imposed a bright-line rule that a trademark
specimen of use taken from a website must contain a picture. At oral argument, the
court asked the PTO’s counsel, “Is the Patent Office saying that for every Internet
marketing use you have to have a picture?” Counsel eventually responded, “We would
say no.” See Oral Arg. at 29:07-37. But the office actions, the Board’s opinion, and the
PTO’s appeal brief belie counsel’s answer. In the first office action, the examiner cited
the rule that a web catalog or webpage specimen is acceptable to show trademark use
as a display associated with the goods only if it includes a picture of the relevant goods.
See Trademark Manual of Examining Procedure (“TMEP”) § 904.06(a)-(b) (4th ed.
2005) (noting that “examining attorneys should accept any catalog or similar specimen
as a display associated with the goods, provided: (1) it includes a picture of the relevant
goods . . .”). The examiner then followed this rule, stating that Sones’ “web catalog
does not show a picture of the goods in close proximity to the mark. In fact, the
specimen does not show a picture of the mark at all.” U.S. Trademark Appl. Serial No.
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78/717,427, Office Action, at 2 (June 11, 2007). The final office action was more
adamant about a picture requirement. The examiner re-cited the rule stated in the first
office action, emphasizing that a display is acceptable “only if” it includes “a picture of
the relevant goods.” U.S. Trademark Appl. Serial No. 78/717,427, Final Office Action,
at 2-3 (July 23, 2007) (emphases in original). The examiner then concluded that “[t]he
specimen of record does not contain a picture of the goods and thus is unacceptable as
showing use of the goods in commerce.” Id. at 3 (emphasis added).
The Board Opinion followed the bright-line rule stated in the office actions. While
it mentioned the inadequacy of Sones’ textual description of his charity bracelets, the
Board noted that “the purported ubiquitousness of charity bracelets does not obviate the
requirement for a picture of applicant’s particular charity bracelets.” Opinion at 8. It
then concluded that Sones failed to satisfy “the criteria . . . that the specimen (1) include
a picture of the relevant goods and (2) show the mark sufficiently near the picture of the
goods to associate the mark with the goods.” Id. at 9.
The PTO’s briefing to this court is to like effect. The PTO briefly notes that the
non-pictorial information in Sones’ specimen would be insufficient to show use in
commerce, contending that “[t]he web pages do not contain even a single line of text to
distinguish the source of the goods.” PTO’s Br. 17. Otherwise, the PTO’s arguments
focus exclusively on the specimen’s lack of a picture. E.g., id. 15 (“Sones argues that a
photo of the goods in relation to the proposed mark is not required for a display
specimen . . . . Sones is mistaken.”). The PTO also interprets the TMEP as indicating
that “the webpage must show the goods, not merely list them, as Sones[] has done.” Id.
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In sum, the PTO’s position has been consistent from prosecution up to oral argument in
this appeal: a website specimen of use must have a picture of the goods.
The PTO finds support for this “rule” in Lands’ End, Inc. v. Manbeck, 797 F.
Supp. 511 (E.D. Va. 1992). In Lands’ End, the district court addressed a specimen of
use from a mail order catalog. Lands’ End applied to register the mark “KETCH” for
purses. The company submitted a specimen that consisted of a page of its catalog that
showed “the picture of a purse, a verbal description, and the term ‘KETCH.’” Id. at 513.
The PTO examiner and Board rejected the specimen for failing to qualify as a “display
associated with the goods.” In response, Lands’ End filed a civil action in district court.
In a brief opinion, the court concluded that “Lands’ End’s use of the term ‘KETCH’ with
the picture of the purse and corresponding description constitutes a display associated
with the goods.” Id. at 514. It observed that the catalog pages “include a picture and a
description of each item.” Id. at 512. The court’s decision, however, turned on the
“point of sale nature of this display,” which allowed a customer “to make a decision to
purchase by filling out the sales form and sending it in.” Id. at 514.
Afterwards, the PTO interpreted and adopted Lands’ End in the TMEP, creating a
new section specifically for “catalogs as specimens.” See TMEP, Instructions
Regarding Revision 1 (2d ed. 1997); see also 2 J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition § 16:32 (4th ed. 2008) [hereinafter McCarthy]. This
section defined the new test for catalogs, citing Lands’ End:
In accordance with this decision, examining attorneys should accept any
catalog or similar specimen as a display associated with the goods,
provided that (1) it includes a picture of the relevant goods, (2) it includes
the mark sufficiently near the picture of the goods to associate the mark
with the goods, and (3) it includes information necessary to order the
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goods. Any form of advertising which satisfies these criteria should be
construed as a display associated with the goods.
Id. § 905.06(a) (emphases added). This test still appears in the latest version of the
TMEP, § 904.03(h) (6th ed. Oct. 12, 2009).
The PTO has since applied this three-part test and Lands’ End to electronic
specimens of use. In In re Hydron Technologies, Inc., the Board found that a television
“infomercial” that displayed the trademarked slogan, with the goods shown “immediately
before or immediately after,” was an acceptable specimen. 51 USPQ2d 1531, 1534
(T.T.A.B. 1999). It cited Lands’ End for the importance of “the proximity between the
pictures of the goods in the catalog and the mark,” but also noted that the infomercial
provided a point of sale because customers could call and order the product. Id. Then,
in In re Dell, Inc., the Board considered a webpage specimen that contained a picture of
a desktop computer and the registered mark. 71 USPQ2d 1725 (T.T.A.B. 2004).
“Following the reasoning of the Lands’ End decision,” the Board said, “we hold that a
website page which displays a product, and provides a means of ordering the product,
can constitute a ‘display associated with the goods,’ as long as the mark appears on the
webpage in a manner in which the mark is associated with the goods.” Id. at 1727. The
Board cited the three-part test from the TMEP (then § 904.06(a) of the 2003 third
edition) and found that the specimen sufficed because it displayed the product and
enabled online ordering. Id. at 1727-28.
The Board has continued to apply this reasoning to Internet specimens,
emphasizing the importance of pictures. It found in In re Valenite that webpage
printouts for tools that “show[ed] pictures of the goods” and provided ordering
information was a proper specimen. 84 USPQ2d 1346, 1349-50 (T.T.A.B. 2007).
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However, it rejected an online ordering form that included no picture, only a hyperlink to
a page with a picture, observing that “it clearly does not display the goods in association
with the mark.” In re Miss. Cheese Straw Factory, Inc., Serial No. 76/617,223, slip op.
at 6 (T.T.A.B. Oct. 21, 2004). Recently, the Board accepted a website specimen for
“unprocessed corn,” focusing on whether the photographs of the corn satisfied “the first
requirement” set out in Lands’ End and Dell—namely, whether they showed the relevant
goods. In re Felix Mauro Torres, Serial No. 78/621,656, slip op. at 7-8 (T.T.A.B. May
12, 2009). Collectively, these decisions show that the Board has adopted its
interpretation of the Lands’ End test for catalog specimens to website specimens,
including a rigid requirement for a picture.
We do not interpret Lands’ End or the law of trademarks to require that
specimens of use from the Internet must always have pictures. First, Lands’ End itself
did not impose the three parts of the TMEP test as absolute requirements. The catalog
in that case included a picture, but the court cited other factors in approving the
specimen, such as the ability to order the purses through the catalog and the
prominence of the mark. It noted: “A crucial factor in the analysis is if the use of an
alleged mark is at a point of sale location.” 797 F. Supp. at 514; see also In re
Osterberg, 83 USPQ2d 1220, 1222-23 (T.T.A.B. 2007) (“In [Lands’ End], the
determinative factor was that the mark was used at the point of sale.”). Furthermore,
“[t]he point of sale nature of this display, when combined with the prominent display of
the alleged mark with the product, leads this court to conclude that this mark constitutes
a display associated with the goods.” Lands’ End, 797 F. Supp. at 514 (emphasis
added). At bottom, the critical inquiry was whether the customer had “the opportunity to
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look to the displayed mark as a means of identifying and distinguishing the source of
goods.” Id. Nowhere did the court say that a photograph is mandatory, much less
apply this rule to website catalogs.
Second, the Board’s bright-line rule has no basis in trademark statute or policy.
“It is well established . . . that the purpose of a trademark is to distinguish goods and to
identify the source of goods.” In re Int’l Flavors & Fragrances Inc., 183 F.3d 1361, 1367
(Fed. Cir. 1999); see also McCarthy § 3:3 (“The prime question is whether the
designation in question, as actually used, will be recognized in and of itself as an
indication of origin for this particular product or service.”). To this end, the Lanham Act
requires an applicant to show “use in commerce,” which is “the bona fide use of a mark
in the ordinary course of trade.” 15 U.S.C. § 1127. To show such use, the mark must
be “placed in any manner on the goods or their containers or the displays associated
therewith or on the tags or labels affixed thereto.” Id. The statute thus specifies no
particular requirements to demonstrate source or origin; for displays, the mark must
simply be “associated” with the goods. See In re Marriott, 459 F.2d 525, 526 (CCPA
1972) (“The terms of the statute [15 U.S.C. § 1127] are met if the mark is placed ‘in any
manner’ on the ‘displays associated’ with the goods.”).
For brick-and-mortar stores, there is no rule that specimens of use must show
pictures. According to the TMEP, “a label is an acceptable specimen” where the mark
“is applied to the goods or the containers for the goods,” even by shipping or mailing
labels. § 904.03(a) (6th ed. Oct. 12, 2009) (emphasis added). On containers, “a
showing of the trademark on the normal commercial package for the particular goods is
an acceptable specimen.” Id. § 904.03(c). Thus, a product box that bears the
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trademark, but does not display a picture of the goods or allow customers to see the
goods, may be an acceptable specimen. See Jerome Gilson, 1 Gilson on Trademarks
§ 3.02 (2009) (“Solid products have greater flexibility, inasmuch as the mark may be
impressed directly on them during the manufacturing process. Of course, use on their
containers or associated displays is equally acceptable.”). As to displays associated
with goods, the Board has found that a display bearing a trademark for chemicals at a
trade show booth was an adequate specimen, even though the chemicals were not
present or visible at the booth. In re Shipley Co., 230 USPQ 691, 692 (T.T.A.B. 1986).
Similarly, our predecessor court found that a menu describing a sandwich’s ingredients
sufficiently associated a trademark with the sandwich. Marriott, 459 F.2d at 526-27.
While the menu “frequently has a small illustration of the sandwich,” the court found that
customers could order based on the “word or pictorial depiction of the sandwich.” Id.
(emphasis added). Thus, tangible specimens—whether labels, containers, or
displays—can show use in commerce by describing the goods in sufficient detail in
relation to the marks.
Given these criteria for physical specimens of use, we see no reason why
websites must necessarily have pictures to associate a trademark with the goods being
sold. The PTO recognizes that “[i]n effect, the website is an electronic retail store, and
the web page is a shelf-talker or banner which encourages the consumer to buy the
product. A consumer using the link on the web page to purchase the goods is the
equivalent of a consumer seeing a shelf-talker and taking the item to the cashier in a
store to purchase it.” TMEP § 904.03(i); see also Dell, 71 USPQ2d at 1727. At oral
argument, when asked whether, if Sones’ product description were printed on boxes of
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charity bracelets instead of a website, the PTO would still reject it, the PTO’s counsel
replied, “the Office would probably consider them acceptable specimens.” Oral Arg. at
17:53-18:37. If, as the TMEP suggests, ordering from a website is “the equivalent” of
picking up a box in a store, and boxes do not need photographs per se to link a
trademark to the goods inside, then neither should websites. The PTO argues that
websites differ from menus, for example, because “you can sell just about anything
these days over the Internet via website.” Id. at 15:17-20. But the ubiquity of Internet
commerce does not prove that consumers always need product pictures to associate
trademarks with goods.
We decline to follow the TMEP’s interpretation of Lands’ End and the three-part
test, as applied to websites. We note that the TMEP is instructive, but “is not
established law.” In re Pennington Seed, Inc., 466 F.3d 1053, 1059 (Fed. Cir. 2006).
Moreover, it is unclear to what extent the TMEP requires pictures for electronic
specimens such as websites. The TMEP states the three-part test under § 904.03(h)
for “Catalogs.” But this section is immediately followed by a separate category for
“Electronic Displays,” § 904.03(i). While this latter section states that “[a] website page
that displays a product, and provides a means of ordering the product, can constitute a
‘display associated with the goods,’” it does not recite the three-part test. Nor does it
say that a picture is required for all electronic displays—what matters is whether “the
mark is associated with the goods” on the webpage.
In light of the foregoing, we hold that a picture is not a mandatory requirement for
a website-based specimen of use, and that the test for an acceptable website-based
specimen, just as any other specimen, is simply that it must in some way evince that the
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mark is “associated” with the goods and serves as an indicator of source. Precedent
such as Lands’ End and Dell establishes that a visual depiction of a product is an
important consideration in determining whether a submitted specimen sufficiently
associates a mark with the source of the goods. It might well be that the absence of a
picture will render website specimens ineffective in many cases and will be, as the PTO
argues, “[a] crucial factor in the court’s analysis.” PTO’s Br. 12-13. But a picture is not
the only way to show an association between a mark and the goods, and we cannot
approve of the rigid, bright-line rule that the PTO applied here.
On remand, the PTO must consider the evidence as a whole to determine if
Sones’ specimen sufficiently associates his mark with his charity bracelets so as to
“identify and distinguish the goods.” BellSouth, 60 F.3d at 1569; see also Damn I’m
Good, Inc. v. Sakowitz, Inc., 514 F. Supp. 1357 (S.D.N.Y. 1981) (finding “Damn I’m
Good” on bracelets to be ornamental, not source-identifying). Relevant factors include,
for example, whether Sones’ webpages have a “point of sale nature,” Lands’ End, 797
F. Supp. at 514, and whether the actual features or inherent characteristics of the goods
are recognizable from the textual description, given that the more standard the product
is, the less comprehensive the textual description need be. See McCarthy § 19:48
(“The applicant’s identification of goods . . . should identify the goods by their common,
ordinary name so that the average person would recognize what they are.”). The term
“charity bracelet” is listed in the PTO’s Acceptable Identification of Goods and Services
Manual under Class Code 014. See TMEP § 1402.04 (describing the Manual as “a
listing of acceptable identifications of goods and services . . . that are acceptable in the
[PTO] without further inquiry” for application purposes). Though not dispositive, the
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2009-1140 13
“use of the designation ‘TM’ . . . lends a degree of visual prominence to the term.” Dell,
71 USPQ2d at 1729. These and other factors will help determine whether Sones’ mark
“signifies the source and quality of the goods.” Int’l Flavors, 183 F.3d at 1366.
CONCLUSION
For the foregoing reasons, the Board’s decision is vacated and remanded for
further proceedings consistent with this opinion.
VACATED and REMANDED

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United States Court of Appeals for the Federal Circuit
2009-1140
(Serial No. 78/717,427)
IN RE MICHAEL SONES
Appeal from the United States Patent and Trademark Office, Trademark Trial and
Appeal Board.
NEWMAN, Circuit Judge, dissenting.
The court today issues an advisory opinion on a non-issue as between the
parties. It makes no difference what we hold as to whether this examiner in this case
had the right to ask for a picture, for the applicant has provided a picture. The
trademark is being examined, and the picture is not at issue. “The case has therefore
lost its character as a present, live controversy of the kind that must exist if we are to
avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48
(1969). The appeal should be dismissed as moot. See Steffel v. Thompson, 415 U.S.
452, 459 n.10 (1974) (“The rule in federal cases is that an actual controversy must be
extant at all stages of review, not merely at the time the complaint is filed.”); Flast v.
Cohen, 392 U.S. 83, 95 (1968) (advisory opinions are not within the purview of Article
III).

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The PTO informed the court of Trademark Application Serial No. 77/582,593,
filed on September 30, 2008, to register the same mark, based on actual use with the
same goods. A picture of the mark in association with the goods was filed – this is the
requirement that is the subject of this appeal. The trademark Rules prohibit the
registration of duplicate marks for the same goods, 37 C.F.R. §2.48 (2009), yet
Application No. 77/582,593 is undergoing prosecution,1 leaving the application here on
appeal redundant. This court’s elaborate opinion is on a non-issue, for an absent
controversy.
Our judicial attention on this appeal, to the right-or-wrong of the examiner’s
request in this application for a picture showing the mark in association with the goods,
has been overtaken by the voluntary act of the applicant in filing the application based
on actual use, and supplying a picture, voluntarily. The applicant has removed the
issue from controversy, rendering it moot. Mootness arises on “a case-by-case
judgment regarding the feasibility or futility of effective relief should a litigant prevail.” In
re AOV Indus., Inc., 792 F.2d 1140, 1147–48 (D.C. Cir. 1986). As to Mr. Sones’ intent-
to-use application, no effective relief is feasible, or needed.
The application to register the mark based on actual use is receiving
examination. Indeed, this court’s instruction as to what should be considered on
remand of the application that is before us, such as whether the mark is merely
ornamental, is the subject of examination in the concurrent application. The issue is the
same, whether for intent to use or actual use. There remains no basis for appealing the
1 See http://tarr.uspto.gov/tarr?regser=serial&entry=77582593. Although
the PTO stated in its brief that the application had been stayed, the public record shows
continued prosecution, including an official action dated September 3, 2009, five days
before this oral argument.
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2009-1140 3
intent-to-use application, when the applicant chose to file an application based on actual
use. The question of whether a picture was properly required no longer has relevance
to any relief available to this applicant. As the Court stated in Renne v. Geary, 501 U.S.
312, 316 (1991), “[c]oncerns of justiciability go to the power of the federal courts to
entertain disputes, and to the wisdom of their doing so.” Even if we had the “power” to
discuss this question, it is not in dispute.
My colleagues state their concern that if this appeal is dismissed, the applicant
may lose a “constructive use” date for priority purposes. This speculative theory does
not turn a dead question into a live controversy. No issue of priority is presented, and
any ruling thereon would be dictum. The only question on appeal is the propriety of the
examiner’s request for a picture. When the applicant chose to proceed by separate
application based on actual use, and to file a picture, he averted any potential rejection
on this ground. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)
(voluntary resolution of the disputed issue moots the appeal of that issue).
Indeed, if there were a sound reason for concurrent prosecution of this intent-to-
use and the actual-use application for the same mark, I should be glad to know it.
However, I can only speculate as to whether there may still be a reason why this appeal
is not moot, for my colleagues on this panel have declined to issue an order inquiring of
the parties. “Emotional involvement in a lawsuit is not enough to meet the case-or-
controversy requirement; were the rule otherwise, few cases could ever become moot.”
Ashcroft v. Mattis, 431 U.S. 171, 173 (1977).
In the posture of this case, the appeal is moot. From my colleague’s contrary
ruling, I respectfully dissent.

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