IP Law Daily, TRADEMARK—TTAB: Podcaster didn't sufficiently show he used mark for production services, (Jun 23, 2025)

By Steven Melendez

The Board ruled that a podcaster hadn't shown he advertised or promoted production services.

The Trademark Trial and Appeal Board (TTAB) declined to reverse a refusal to register the service mark "THE HAUNTED ESTATE" for “entertainment services In the nature of development, creation, production and post-production of multimedia Entertainment content,” saying the applicant hadn't shown he advertised or performed such services for customers (In re Myers, No. 97532760 (T.T.A.B. Jun. 10, 2025)).

Adam J. Myers applied to register the service mark "THE HAUNTED ESTATE" for “entertainment services in the nature of development, creation, production and post-production of multimedia entertainment content,” in International Class 41. An examining attorney found the applicant had shown the mark was used on podcasts but not on the claimed services. After Myers appealed to the TTAB, the examining attorney also found that services are ancillary to producing podcasts "and are therefore for Applicant’s benefit, not the benefit of others," also justifying a refusal of registration, according to the ruling.

Applicants for service marks are required to submit evidence of use in advertising the services or in actually rendering them. The TTAB found that Myers does use the mark THE HAUNTED ESTATE in conjunction with "an entertainment program series he presents via videos and podcasts," available via YouTube, Apple Podcasts, and Spotify. And he presented specimens showing evidence of use in both advertising and rendering, including screenshots of a podcast preview page on apple.com, a launch screen on YouTube, and in-play screenshots from YouTube.

The issue, the examining attorney had found, is that the specimens show evidence of "providing an entertainment service in the nature of a service," not providing "development, creation, production and post-production" services to others. The examining attorney provided examples of businesses advertising podcast production and editing services to others.

The TTAB panel agreed, finding that "the specimens do not show use of the Mark in connection with the activities recited in the Application," showing simply that he provides entertainment services via his podcasts. While Myers showed that consumers would form an association between THE HAUNTED MASK and the entertainment services he provides, he hadn't established that the mark was used in conjunction with the services he claims in the application.

The TTAB didn't reach the examining attorney's additional assertion that the claimed services are ancillary to the entertainment services Myers primarily provides, since the fact that the specimens failed to show connection to the claimed services was sufficient to refuse the application.

Submission of evidence. The TTAB panel also noted that Myers "attached as exhibits to his main brief copies of five specimens of use he submitted over the course of prosecuting his Application."

The examining attorney objected that they were already made of record and shouldn't have been resubmitted. The panel sustained that objection, citing precedent that evidence shouldn't be refiled, and noted that it would rely on the specimens as they initially were added to the record.

The Case is Serial No. 97532760.

Judge: Heasley, D.

Attorneys: Shane M. Popp (LOSMP) for Adam J. Myers. Shana McNamara for the USPTO.

Cases: Trademark USPTO