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In re Siny Corp.

United States Court of Appeals, Federal Circuit

April 10, 2019

IN RE: SINY CORP., Appellant

          Nonprecedential Opinion Issued: January 14, 2019

          Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board in No. 86754400.

          Daniel Kattman, Reinhart Boerner Van Deuren s.c., Milwaukee, WI, for appellant. Also represented by Heidi R. Thole.

          Thomas W. Krause, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, for appellee Andrei Iancu. Also represented by Christina J. Hieber, Mary Beth Walker.

          Before Prost, Chief Judge, Lourie and Stoll, Circuit Judges.

          PROST, CHIEF JUDGE

         Siny Corp. ("Siny") appeals a decision of the Trademark Trial and Appeal Board ("Board") affirming the examining attorney's refusal to register Siny's proposed mark. We affirm.

         I

         Siny filed trademark application Serial No. 86754400 on September 11, 2015, seeking to register the mark CASALANA in standard characters for "Knit pile fabric made with wool for use as a textile in the manufacture of outerwear, gloves, apparel, and accessories" based on use in commerce under Section 1(a) of the Lanham Act, 15 U.S.C. § 1051(a). Siny also submitted a specimen consisting of a webpage printout, which purported to show the mark in use in commerce for the goods.

         The examining attorney initially refused registration because the specimen "appear[ed] to be mere advertising material" and thus failed to show the requisite use in commerce for the goods. J.A. 74. The examining attorney noted in particular that the specimen did not include a means for ordering the goods. In response, Siny submitted a substitute specimen (the "Webpage Specimen"), which was the same webpage but with additional text showing. The Webpage Specimen is reproduced below:

         (Image Omitted)

         J.A. 61-62. Siny responded to the refusal by arguing that the Webpage Specimen included a means to purchase the goods-namely, the text "For sales information:" followed by a phone number and email address.

         The examining attorney rejected that argument in a final refusal. He found that the cited text alone was insufficient for consumers to make a purchase; rather, it only indicated how consumers could obtain more information necessary to make a purchase. The examining attorney noted the absence of what he considered necessary ordering information, such as minimum quantities, cost, payment options, or shipping information. He therefore maintained the refusal based on the submitted specimen's failure to show the requisite use in commerce for the goods.

         Siny appealed the refusal to the Board. In a split decision, the Board affirmed. The Board initially noted that for a mark to be in use in commerce on goods, it may be "placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto." J.A. 2 (quoting 15 U.S.C. § 1127). The Board observed that the Webpage Specimen was not an example of the mark being placed on the goods or their containers, tags, or labels. Rather, Siny contended that the Webpage Specimen constituted a "display associated with the goods." J.A. 2. The Board cited precedent as supporting a general ...


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