Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE CONUS COMMUNICATIONS COMPANY LIMITED PARTNERSHIP AND VIACOM
SATELLITE NEWS INC.
Serial No. 74/001,879
June 18, 1992
Hearing: April 22, 1992
Albert Robin of Robin, Blecker, Daley & Driscoll for Conus Communications Company Limited Partnership and Viacom Satellite News Inc.
Trademark Examining Attorney
Law Office 8
(Thomas Lamone, Managing Attorney)
Before Rice, Simms and Quinn
Opinion by Simms
Conus Communications Company Limited Partnership and Viacom Satellite News Inc. (applicants), have appealed from the final refusal of the Trademark Examining Attorney to register the words ALL NEWS CHANNEL for television broadcasting services in Class 38 and television production services in Class 41. [FN1] Calling the words sought to be registered "a common or apt descriptive designation," the Examining Attorney has refused registration on the Supplemental Register because they are allegedly incapable of distinguishing applicants' services from those of others. Section 23(a) of the Trademark Act, 15 USC 1091(a) (1989).
Applicants originally filed an application to register the phrase ALL NEWS CHANNEL on the Principal Register. The Examining Attorney refused registration under Section 2(e)(1) of the Act, 15 USC 1052(e)(1). Applicants then disclaimed the words "NEWS CHANNEL," stating that those words "may be merely descriptive." Applicants' Response, filed April 6, 1990. After this refusal was made final, applicants amended the application to one seeking registration on the Supplemental Register and requested deletion of the disclaimer. The Examining Attorney then refused registration as indicated above.
The record on behalf of the Office includes excerpts from the NEXIS computer search system and dictionary definitions of the words making up applicants' asserted mark. [FN2] Some of these excerpts are reproduced below:
... unexpected hit, more than doubling its audience after just 15 months on the air. CNN and Headline News, his two all-news channels, grow in resourcefulness and credibility with each passing world crisis. Turner has launched a publishing company, and is shopping for ...
(Time, January 22, 1990)
... said that, I think that some people will want to have availability of a film channel or a sports channel or an all-news channel ...
(Broadcasting, January 29, 1990)
Meanwhile, KQED continues its talks with cable operator Tele-Communications, Inc. to switch Channel 32 to a regional all-news channel. According to plan, commercials would be inserted on Channel 32 on cable TV systems.
(The San Francisco Chronicle, February 9, 1990)
... Mr. Schonfeld, founding president of cable's CNN, told ELECTRONIC MEDIA that since he left CNN, he had tried to launch an all-news channel in Washington, but that the local cable companies' reaction had been "tepid, not to say hostile."
*2 (Electronic Media, March 19, 1990)
... CHOICE pay-per-view service, and EXTRAVIEW, a varied and valuable package that includes 16 popular satellite services: All News Channel, American Movie Classics, A & E, The Discovery Channel, ESPN, The Family Channel, Financial News Network, Lifetime, MTV ...
(Business Wire, April 4, 1990)
He insists he doesn't get out of bed in the morning until he hears the number "23" spoken over the all-news channel on his radio. Such a screwy start, he beams, "is my insurance policy against having an ordinary day."
(Los Angeles Times, April 6, 1990)
... Cable operators generally agree that there is a market for an all-comedy cable channel, just as there are all-sports and all-news channels, although second channels offering a similar format behind an already established channel have mostly failed.
(Los Angeles Times, April 12, 1990)
... group is considering producing its own programming but has not ruled out an alliance with newspaper or broadcaster, he said. All-news channels are also being planned in New Jersey and the New York City suburbs in Westchester County and Fairfield County, Conn.
(The New York Times, April 14, 1990)
The Examining Attorney has also referred to a television newsletter submitted with applicants' amendment to allege use describing their broadcasting services as "24-hour" coverage of the latest news. Other information of record shows that applicants are in the business of providing a news channel with extensive coverage. "We're the only news channel you can brand with your cable system's identity. So you become the local, national and international news source your subscribers know best--and tune into more often. We're the only news channel to offer you unlimited flexibility ..." (Brochure submitted September 9, 1991.) Applicants, on the other hand, have submitted copies of newspaper articles where their asserted mark is used as the name identifying applicants and their services.
Essentially, applicants argue that their mark distinguishes their services from those of others and is capable of registration on the Supplemental Register. In this connection, applicants argue that the names of television channels, like the names of some periodicals, frequently suggest or describe the contents thereof. Applicants acknowledge that nontrademark use of the words "all news channel" will not give rise to any confusion but that others are prohibited from using applicants' adopted mark to identify and distinguish their services. It is applicants' position that the descriptive use of the words "all-news channel" will not be inhibited by registration to applicants.
After careful consideration of this record, we agree with the Examining Attorney's conclusion that these words are generic for a type of television channel, and for applicants' television broadcasting and production services:
*3 A television viewer seeing the mark as used on the guide and taking into account its common meaning would understand ALL NEWS CHANNEL to identify an all news television channel ...
Regardless of applicant's good intentions to use ALL-NEWS CHANNEL as a service mark, it is clear from the NEXIS and dictionary evidence that the consuming public and the industry view the wording in the mark as apt descriptive language for a type of television channel. Thus, good intentions to use a mark as a source-identifier can not override the generic or apt descriptive character of the mark.
(Examining Attorney's brief, 4, 6)
The words chosen by applicants as their mark generically describe their broadcasting and production services of which the entire subject matter is the news. Evidence of how these words are used and perceived in the trade is reflected by the generic use in the excerpts made of record by the Examining Attorney. See In re Gould Paper Corp. 834 F.2d 1017, 5 USPQ2d 1110 (Fed.Cir.1987).
Decision: The refusal of registration is affirmed.
Members, Trademark Trial and Appeal Board
FN1. Application Serial No. 74/001,879, originally filed on the Principal Register on November 16, 1989, under Section 1(b) of the Act, 15 USC 1051(b), and amended to an application on the Supplemental Register on November 13, 1990.
FN2. At the oral hearing, the Examining Attorney acknowledged that she had only submitted eleven of the most recent excerpts from the 155 "hits." She belatedly realized that either all the excerpts should have been included or a brief statement should have been made concerning why only the selected excerpts were submitted and not the others, and whether the excerpts submitted were fairly representative of all of the excerpts found. See, for example, In re Monotype Corp. 14 USPQ2d 1070, 1071 n. 2 (TTAB 1989) and In re Gagliardi Bros., Inc., 218 USPQ 181, 183 n. 1 (TTAB 1983).
Also, at the oral hearing, the Examining Attorney agreed to the introduction into this record by applicant of a copy of a page from a recent edition of the Official Gazette showing the publication of the mark THE WEATHER CHANNEL for meteorological services. In this connection, see In re Weather Channel, Inc., 229 USPQ 854 (TTAB 1985).