MoKappa, LLC

OCR transcription for search; preserved printed pages are authoritative

THIS OPINION IS NOTA
PRECEDENT OF THE TTAB

Hearing: April 3, 2025 Mailed: January 29, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

In re MoKappa, LLC

Serial No. 97858923

Bruce E. Matter of Law Offices of Bruce E. Matter, P.C., for MoKappa, LLC.

Joseph Becker, Trademark Examining Attorney, Law Office 117,
Cash Browning, Managing Attorney.

Before Dunn,! English, and Brock,
Administrative Trademark Judges.

Opinion by Brock, Administrative Trademark Judge:

MoKappa, LLC (“Applicant”) seeks registration on the Principal Register of the
mark RAINY (in standard characters) for services ultimately identified as “streaming
of audio, visual and audiovisual material via a global computer network; electronic

transmission and streaming of digital media content for others via global and local

1 Judge Lynch sat on the panel at the oral argument. She has since retired, and Judge Dunn
has been substituted for her on this decision. The change in composition of the panel does not
necessitate a rehearing of the oral argument. See In re Bose Corp., 772 F.2d 866, 869 (Fed.
Cir. 1985).

Serial No. 97858923
- 2 -
computer networks” in International Class 38.2 This is an appeal from the Examining
Attorney’s denial of Applicant’s proposed amendment to its services, and the final
refusal based on Applicant’s failure to submit acceptable specimens showing use of
the mark with the services listed in the application. For the reasons discussed below,
we affirm both the denial and the refusal.
I. Background
The Trademark Examining Attorney initially refused registration under Sections
1 and 45 of the Trademark Act, 15 U.S.C. §§1051, 1127, on the ground that the
specimen did not show use of the mark in commerce for Applicant’s identified
services.3 In response, Applicant sought to amend the services.4 The Examining
Attorney continued the specimen refusal and additionally denied the proposed
amendment to the identification of services on the basis that the amendment
impermissibly exceeded the scope of the identification, under Trademark Rules
2.32(a)(6), 2.71(a), 37 C.F.R. §§ 2.32(a)(6), 2.71(a).5
The full prosecution history is somewhat tortuous – comprising several Office
actions and responses, three requests for reconsideration after final action, and a
request for remand – and based on Applicant’s initial mistake in identifying its
2 Application Serial No. 97858923 was filed on March 27, 2023, based on Applicant’s
allegation of use of the mark in commerce under Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a), alleging January 1, 2015 as the date of first use anywhere and first use in
commerce.
3 December 20, 2023 Nonfinal Office Action, 2.
4 January 12, 2024 Response to Office Action.
5 January 18, 2024 Office Action, 1.

Serial No. 97858923
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services. Applicant repeatedly attempted to amend the services and each time, with
one exception discussed below, the Examining Attorney rejected the proposed
amendment as beyond the scope of the original services; the Examining Attorney also
continued to refuse the specimens.
Amidst the various proposals, there is one effective amendment. In Applicant’s
April 11, 2024 response to an Office action, it deleted the second clause of the
identification, namely, “communications services, namely, transmitting streamed
sound and audiovisual recordings via the Internet,” which is a permissible narrowing
of the services. At that point, the operative identification of services became
“streaming of audio, visual and audiovisual material via a global computer network;
electronic transmission and streaming of digital media content for others via global
and local computer networks” in International Class 38 (the “Amended
Identification”). The Examining Attorney’s subsequent Office Action did not address
the amendment, but because the only change was deleting an independent clause of
services, the Amended Identification became Applicant’s operative identification of
services.
In its request for remand, Applicant sought to “amend back to its original
identification” and submitted substitute specimens.6 The Examining Attorney again
denied this request on the basis that it exceeded the scope of the existing
identification and maintained the specimen refusal.7
6 8 TTABVUE 4-5
7 10 TTABVUE 1.

Serial No. 97858923
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Accordingly, the issues on appeal are: (1) if the amendment to the identification
in the request for remand is within the scope of the existing identification, and (2) if
the specimens are acceptable. The case is fully briefed8 and a hearing was held on
April 3, 2025.
II. Amendment to Identification
Trademark Rule 2.71(a) restricts amendments to the identification of goods or
services: “The applicant may amend the application to clarify or limit, but not to
broaden, the identification of goods and/or services ….” In the April 11, 2024 response
to Office action, Applicant deleted the second clause of the identification, namely,
“communications services, namely, transmitting streamed sound and audiovisual
recordings via the Internet” (the “Deleted Clause”). As noted above, in its request for
remand, Applicant attempted to “amend back to its original identification …
namely, ‘streaming of audio, visual and audiovisual material via a global computer
network; communications services, namely, transmitting streamed sound
and audiovisual recordings via the Internet; electronic transmission and
streaming of digital media content for others via global and local computer
networks.’”9 (cleaned up; emphasis added).
The original identification contains the Deleted Clause, so Applicant’s attempt to
“amend back” adds language it deleted. This would broaden the identification, which
8 Applicant’s appeal brief appears at 12 TTABVUE; the Examining Attorney’s brief at 14
TTABVUE; and Applicant’s reply brief at 15 TTABVUE.
9 8 TTABVUE 4.

Serial No. 97858923
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is not permitted under Trademark Rule 2.71(a). Therefore, the proposed amendment
impermissibly exceeds the scope of the existing identification. Id.
We also cannot turn back the clock to revert to this earlier version of the
identification, as “the Board cannot re-write the application to reinstate an
identification previously discarded by the applicant.” In re Faucher Indus. Inc., No.
85202870, 2013 TTAB LEXIS 313, at *7. Applicant discarded the Deleted Clause
during prosecution and, as has long been the case, cannot “amend back” here. In the
case of In re Swen Sonic Corp., No. 73832989, 1991 TTAB LEXIS 39, at *3-4, we
stated:
These new regulations [implementing the Trademark Law
Revision Act of 1988] provided that identifications of goods
could only be limited or clarified. 37 C.F.R. § 2.71(b). The
term “identification of goods” was not limited only to the
original identification of goods. This rule prohibits an
applicant who has previously deleted goods from its
identification of goods from reintroducing these goods into
the identification of goods.
Lastly, for the avoidance of doubt, we note that the Deleted Clause is not
encompassed by the remaining two clauses of the Amended Identification, such that
its addition could be considered an acceptable clarification or limitation under
Trademark Rule 2.71(a). The original identification and the Amended Identification
comprise acceptable identifications set forth in the Trademark ID Manual. Therefore,
the Office has found these identifications definite. See In re Jimmy Moore LLC, No.
86353015, 2016 TTAB LEXIS 382, at *22 (explaining that identifications from the
Trademark ID Manual are definite, and rejecting applicant’s argument that

Serial No. 97858923
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identifications from the Manual contain vague terms). Applicant cannot not revert to
its originally-filed identification in this manner.
We affirm the Examining Attorney’s decision to deny Applicant’s proposed
amendment as an impermissible expansion of the Amended Identification.
III. Whether the Specimens Show Use in Commerce of the
Identified Services
We now turn to a consideration of whether the specimens of record demonstrate
use of the RAINY mark in connection with the Amended Identification, namely,
“streaming of audio, visual and audiovisual material via a global computer network;
electronic transmission and streaming of digital media content for others via global
and local computer networks” in International Class 38.10
Section 45 of the Trademark Act, 15 U.S.C. § 1127, provides that a service mark
is used in commerce “when it is used or displayed in the sale or advertising of services
and the services are rendered in commerce.” See also Trademark Rule 2.56(b)(2). “To
determine whether a mark is used in connection with the services described in the
[application], a key consideration is the perception of the user.” In re JobDiva, Inc.,
843 F.3d 936, 941 (Fed. Cir. 2016) (citation omitted). The question is whether the
evidence of Applicant’s use of its mark creates an association between the mark and
the services. Id. at 941-42. “Specimens showing the mark used in rendering the
10 Applicant also argues in the alternative that if Applicant’s proposed amendment to Class
41 were accepted, that the specimens also support these services. 12 TTABVUE 24. As
Applicant may not add services to its application, we do not address the sufficiency of those
specimens for those services.

Serial No. 97858923
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identified services need not explicitly refer to those services in order to establish the
requisite direct association between the mark and the services, but ‘there must be
something which creates in the mind of the purchaser an association between the
mark and the service activity.”’ In re WAY Media, Inc., No. 86325739, 2016 TTAB
LEXIS 201, at *4 (quoting In re Johnson Controls, Inc., No. 74195251, 1994 TTAB
LEXIS 25, at *7).
As part of this determination, we briefly consider Applicant’s evidence “of the
commercial context in which Applicant uses its mark … in connection with
broadcasting, streaming and electronic transmission services under IC 038.”11 This
evidence comprises twelve screenshots of a third-party streaming platform called
Twitch.12 Applicant urges that the screenshots “confirm[] that Applicant is the
streamer and initial broadcaster of Applicant’s digital media stream” and that a
streamer like Applicant “must have the technical capability to transmit a digital
stream of content.”13 As Applicant has the technical ability to do so, and thus
“initiates and controls the broadcast, stream and transmission of its content”14 to its
audience via a streaming platform, then Applicant contends it is offering the recited
Class 38 services. “In the mind of viewers,” Applicant argues, Applicant “is the source
of the IC 038 broadcast stream – not [the streaming platform].”15 According to
11 Request for Remand, 8 TTABVUE 5.
12 Id. at 21-44.
13 Id. (emphasis in original removed).
14 Id. at 11.
15 Id. at 13.

Serial No. 97858923
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Applicant, the same is true of the chat feature, as Applicant explains: “In the mind of
the viewer, the Chat service offered on Applicant’s RAINY branded Twitch channel
is associated with Applicant’s mark RAINY. Twitch does not ‘chat’ with Applicant’s
viewers in Applicant’s RAINY branded channel. Nor do Applicant’s viewers expect or
want to ‘chat’ with Twitch via Applicant’s RAINY branded Twitch channel.”16
We disagree with Applicant’s characterization of the evidence for several reasons.
First, the screenshots of various pages from the streaming platform show the
streaming platform provider distinguishing between the transmission of data for
others (e.g., by the streaming platform) and provision of that data or content by
content providers and streamers who use the streaming platform.17 Second, we
disagree with Applicant’s assertion that the evidence shows that Applicant’s viewers
are unable to tell apart the streaming platform as the source of the underlying data
transmission service and Applicant as the source of the data or content. Applicant’s
viewers on the third-party Twitch platform are necessarily Twitch users; they are
using the platform to access Applicant’s content.
Last, it is certainly possible that particular content may be streamed by more than
one party, as Applicant suggests.18 However, Applicant’s argument – that it provides
16 Id. at 12 (emphasis in original removed).
17 See, e.g., id. at 22 (“At Twitch, the main information pipeline for a stream starts with you.
A broadcaster sends a video stream to Twitch over the public internet using any of several
tools. … Once your stream enters our system, Twitch beams it all over the world.”); see also
id. at 26 (In the Terms of Service, “User Content” as the activity and data of its users, i.e.,
“you may create, post, transmit, perform, or store content, messages, text, sound, images,
applications, code, or other data or materials on the Twitch Services.”).
18 12 TTABVUE 10-11.

Serial No. 97858923
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a sort of “upstream” streaming service, feeding its content to the streaming platform
which then streams the content secondarily – runs astray of the criteria for
determining what constitutes a service:19:
(1) a service must be a real activity; (2) a service must be
performed to the order of, or for the benefit of, someone
other than the applicant; and (3) the activity performed
must be qualitatively different from anything necessarily
done in connection with the sale of the applicant’s goods or
the performance of another service.
Blizzard Ent., Inc. v. Ava Labs, Inc., No. 91285851, 2024 TTAB LEXIS 259, at *10-11
(citing In re Canadian Pac., 754 F.2d 992, 994-995 (Fed. Cir. 1985)). Applicant’s
initial upload of its videos and commentary content is how Applicant accesses the
streaming services that Applicant obtains from the streaming platform and so that
action is for Applicant’s own benefit – not a separate telecommunications service
offered to others in order to transmit their data.
Having reviewed the commercial context evidence for Applicant’s specimens, we
now turn to the specimens themselves. We have considered all specimens of record,
which include the original specimen submitted with the initial application,20 the first
substitute specimen submitted during prosecution,21 as well as the second substitute
specimen submitted in the request for remand.22 The specimens comprise screenshots
19 12 TTABVUE 9-10.
20 March 27, 2023 Application.
21 April 11, 2024 Request for Reconsideration.
22 8 TTABVUE, 15-20.
As required, each specimen is supported by a declaration that the specimen was in use when
Applicant filed the use-based application.

Serial No. 97858923
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from the third-party Twitch and Discord streaming and communication services
platforms.23 The RAINY mark is clearly visible in all specimens; the only issue is
whether users would perceive an association between RAINY and the Class 38
Amended Identification. As stated, we have considered all specimens of record, but
include here representative samples of Applicant’s Twitch channel “About” page (for
ease of reference we also provide enlarged images of portions of the specimen,
indicated by a black border).
24
23 8 TTABVUE, generally.
24 March 27, 2023 Application, specimen, described as “pdf copy of applicant’s Twitch channel
About page” at https://www.twitch.tv/rainy/about.

Serial No. 97858923
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The RAINY mark appears prominently in the top left.25 The purple Twitch banner
at the bottom encourages users to “Sign up to [Twitch] experience the best of Rainy
Chat, follow or subscribe – Twitch is your oyster.” Consumers, who are necessarily
users of Twitch by virtue of accessing Applicant’s Twitch account page, as discussed
above, would understand that the streaming platform provides the streaming and
chat services; the streaming platform service even visually frames Applicant’s
content within. We agree with the Examining Attorney’s assessment that “applicant
appears to host a series of online videos: [the specimen] does not show applicant
offering streaming or telecommunications services to others (as, perhaps,
Twitch is, which applicant is on).”26
25 Purple appears to be the color Twitch uses for its own branding; the logo at the top left is
purple, as are the checkmarks next to the RAINY marks, the “Sign Up” button at the top
right (above the RAINY content), and the banner at the bottom of the screen.
26 December 20, 2023 Nonfinal Office Action, 2 (emphasis in original).

Serial No. 97858923
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27
27 8 TTABVUE 16, specimen, described as follows: “A FULL screenshot of Applicant’s Twitch
channel ‘About’ page showing Applicant’s mark associated with detailed descriptions of
Applicant’s broadcasting services … which directly associates the specimen with Applicant’s
IC 038 broadcasting, streaming, and electronic transmission services.” Id. at 4. The red
arrows are Applicant’s. We divided the screenshot into four images because a legible version
does not fit onto one page.

Serial No. 97858923

<item
Introduction

i INTRODUCTION

Oh, it's you? I'm the DARK DRAGON that claimed
your videogame mancave as her HOARD.

Now I'm chilling under the mountain, ot
known as YOUR MOM'S BASEMENT,

© you wanna hang out?

®@ RULES
43 English / Japanese Only
l only speak Amurrican (and elementary Japenese).
43 Don't Discuss Other Streamers
Unless we're friends or collabing.
«2 No Trauma Dumping
Good vibes only pl
«2 No Spoilers or Backseat Gaming
I'l ask if | need help. But | don't need it...! (
«2 18+ ONLY
l use profanity and make suggestive jokes.

43 PET AND PRAISE ME
THIS IS MANDATORY

SUBSCRIBE

iO ADS!
io Link Timeouts
bscriber Emotes
3 Subscriber Chat Acc
immunity to Slow Mode
scord Channels & Roles

You don't have to sub to be my SUB -~ watching
ang telling me how shiny | am is enought

@ STREAM & SCHEDULE

I don't have a set schedule this month due to
planning my VTuber debut.

| play FPS, MMOs, RPGs and Survival / Horror

If my stream had an ESRB ratin would probably
be MATURE. !'m a pure seiso maiden! But | curse
and joke about lewd stuff, like TOSing men in my
DUNGEON to become my HIMCESSES...!

& QUESTIONS & ANSWERS

Is that really your voice?

-13-

[2 Black Myth: W...]

RIBER A 25% DISCOUNT

¥ Al Text To Speech (22) v

Master Yoda\~ Starwars

yrs

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Luigi - Super Mario | TTS Al v... 4
n

Mario - Super Mario | TTS Al.
nT

Candace Flynn | TTS Al voice 4

rs

Ferb Fletcher | TTS Al voice

Phineas Flynn

$ TWITTER

Main for five alerts, renders, etc.
Personal for hot takes nobody cares about

6 YOUTUBE

VODs and things.

@ DISCORD

My chat dungeon.

6@ REDDIT

Join my SUB

6 TIKTOK

Follow me B4 congress bans it!

6 THRONE

Make offerings and give tribute!

Serial No. 97858923
- 14 -
In this “full” specimen, Applicant points to the “Chat Rules”, and the “Streaming
PC” and other technology used by Applicant to record videos and upload them to the
streaming platform to argue that Applicant controls the transmission of its content
and that viewers associate the provision of streaming services and the communication
services of the chat function with the RAINY mark. Again, Applicant’s viewers on the
Twitch streaming platform are necessarily Twitch users; they use the platform to
access Applicant’s content (they have to, to reach this page). The specimen does not
demonstrate use of the RAINY mark in connection with the Amended Identification,

Serial No. 97858923
- 15 -
namely, “streaming of audio, visual and audiovisual material via a global computer
network; electronic transmission and streaming of digital media content for others
via global and local computer networks” in International Class 38.28
We affirm the Examining Attorney’s refusal based on Applicant’s failure to submit
acceptable specimens showing use of the RAINY mark with the Amended
Identification.
IV. Conclusion
Having considered all the evidence and arguments of record, we affirm the
Examining Attorney’s decision to deny Applicant’s proposed amendment as an
impermissible expansion of the Amended Identification and the refusal to register on
the ground that the specimens do not show the mark used in commerce on the
identified services.29
Decision: The refusal to register Applicant’s mark is affirmed.
28 For the same reasons, the additional specimens from the Twitch platform and the specimen
from the Discord communication platform fail to show use of the mark for the identified
services.
29 Applicant is free to file a new application, correctly identifying the services it offers under
its mark, as shown in its specimens.