IP Law Daily, TRADEMARK—TTAB: Refusal to register RUFFAREE mark for dog park services reversed, (Mar 18, 2025)

By Linda O’Brien, J.D., LL.M.

An acceptable specimen did not need to refer specifically to the services if it showed the use of the proposed mark in the rendering or sale of the identified services.

The refusal of the application of a dog park, beer garden, and coffee bar business to register the mark RUFFAREE for its recreational dog park services was improper, the Trademark Trial and Appeal Board has determined in a nonprecedential order. Substitute specimens that consisted of photographs of employees wearing shirts displaying the proposed mark while working at a dog park were acceptable to show the mark used in the rendering or sale of dog park services. Thus, the refusal to register with respect to the application was reversed (In re Brewhound Coffee-Bar Co., No. 88681779 (T.T.A.B. Mar. 14, 2025)).

Brewhound Coffee-Bar Co. (“Applicant”), a local Florida business that operates a member-based recreational dog park, beer garden, and specialty coffee bar, sought to register on the Principal Register the service mark RUFFAREE in standard characters for, as amended, “recreational dog park services” in International Class 41.

The examining attorney refused to register the proposed mark under Sections 1 and 45 of the Trademark Act on the ground that the Applicant’s original and substitute specimens failed to show the applied-for mark used in connection with the identified services. After the refusal was made final, the Applicant appealed the refusal to register to the Trademark Trial and Appeal Board.

Service mark specimens. Some the substitute specimens submitted by the Applicant were sufficiently adequate to show that the proposed mark used in connection with the identified recreational dog park services, the Board determined. The Applicant’s original specimens that were filed with its application consisted of a printout from the Applicant’s website, an advertisement published in the Unleash Jacksonville magazine, and a red tee shirt displaying “RUFFAREE” on the back. The excerpts from the website did not include any references to the proposed mark. The advertisement printed in the magazine used RUFFAREE in the context of a person watching dogs play in a yard. The red tee shirt had the Applicant’s design logo BREW HOUND DOG PARK BAR displayed on the front and the mark RUFFAREE displayed in white letters on the back.

The examining attorney found that none of the specimens were acceptable because each failed to show a direct association between the mark and the services and that the applied-for mark was actually used in commerce with the identified services. The examining attorney only addressed the specimens consisting of the photographs of the red tee shirts and stated that “the specimen does not show a direct association between the mark and services in that the mark is shown on a t-shirt, International Class 25 goods.”

The Applicant then submitted substitute specimens consisting of three photographs of employees at the recreational dog park. Each photograph consisted of a person wearing a red shirt displaying the mark RUFFAREE in white letters on the back while observing dogs and people in a recreational dog park. The examining attorney rejected the first set of substitute specimens, finding that “applicant’s clothing item displaying the mark does not create a connection with identified services.”

The Applicant submitted another substitute specimen which consisted of four pages of print outs from the Applicant’s website. On the second page, the subheading “For the Pups” read as follows: “For the pups, separately fenced large and small breed dog parks allow unleashed freedom for play. Our Brewhound Ruffarees keep a watchful eye over the pups as they play and break up any rowdiness that may ensue.” The examining attorney deemed the second substitute specimen unacceptable because it did “not show a direct association between the mark and services in that the specimen of record does not show use of the mark RUFFAREE in connection with the advertised services” because the “heading of the webpage is identified as Brew Hound Dog Park & Bar and the term ‘Ruffaree’ is buried in the body of the webpage under ‘For the Pups’”.

The original and second substitute specimens failed to show the use of the mark RUFFAREE in commerce for “recreational dog park services”, the Board stated. The original specimen of print outs did not include the Applicant’s mark RUFFAREE. Instead, it was comprised of an advertisement printed in the Unleash Jacksonville magazine, which included the mark RUFFAREE in the context of describing an employee job title and not for the Applicant’s services. Similarly, the second substitute specimen referenced Brewhound Ruffarees in the same context. Also, the original specimen with the photographs of the front and back of a tee shirt displaying RUFFAREE did not show the use of the mark in connection with the identified services either in the form of an advertisement or an actual rendering of recreational dog park services.

However, the examining attorney failed to properly consider the first set of substitute specimens and the Applicant’s explanation regarding their nature, context, and use. The Applicant explained that the tee shirts were employee uniforms that were worn daily while working at the Applicant’s recreational dog park. Since each photograph supported that explanation, the mark was displayed on the uniform of the employees in the course of rendering recreational dog park services. Consumers of the Applicant’s services would perceive the display of RUFFAREE on the back of the employee uniforms as service mark usage. Therefore, the set of substitute specimens were acceptable to show the mark “as used in the sale of services, including use in the performance or rendering of the services,” as required under Trademark Rule 2.56(b)(2), the Board concluded.

The Case is Serial No. 88681779.

Judge: Lykos, A.

Attorneys: Woodrow H. Pollack (Shutts & Bowen LLP) for BrewHound Coffee-Bar Co. Stephanie Davis Ali for the USPTO.

Companies: BrewHound Coffee-Bar Co.

Cases: Trademark USPTO