An acceptable specimen of use for a trademark must show “some direct association between the offer of services and the mark sought to be registered therefor.” In re Universal Oil Prods., 476 F.2d 653, 177 USPQ 456, 457 (CCPA 1973). A specimen that shows only the mark with no reference to, or association with, the identified services does not show service mark usage. In re Adair, 45 USPQ2d 1211, 1214-15 (TTAB 1997); In re Duratech Indus. Inc., 13 USPQ2d 2052, 2054 (TTAB 1989). “For specimens showing the mark in advertising the services, in order to create the required ‘direct association,' the specimen must not only contain a reference to the service, but also the mark must be used on the specimen to identify the service and its source.” In re Way Media, 118 USPQ2d 1697, 1698 (TTAB 2016) (quoting In re Osmotica Holdings, 95 USPQ2d 1666, 1668 (TTAB 2010)). Specimens showing the mark used in rendering the identified services need not explicitly refer to those services in order to establish the requisite direct association between the mark and the services. However, “there must be something which creates in the mind of the purchaser an association between the mark and the service activity.” In re Johnson Controls, Inc., 33 USPQ2d 1318, 1320 (TTAB 1994); In re JobDiva, Inc.,843 F.3d 936 121 USPQ2d 1122, 1126 (Fed. Cir. 2016) (“[t]o determine whether a mark is used in connection with the services described in the [application], a key consideration is the perception of the user”).

The TTAB recently held that a specimen showing the GABBY'S TABLE mark in use with providing “referrals of products for sale by third parties on their websites” does not show use for the “on-line retail store services” identified in the application. In re Gail Weiss, Serial No. 88621608 (TTAB July 31, 2024). 

The specimen was a webpage displaying a list of items that “Gabby's Table Recommends” for purchase with a “BUY NOW” button that merely re-directs the consumer to a third-party website (such as Amazon.com) for purchase. “Despite the presence of ‘BUY NOW' buttons on Applicant's webpage, Applicant does not herself sell the products she recommends.” Thus, the TTAB found that “Applicant's own evidence indicates that Applicant provides referrals and recommendations of cooking and food-related products offered for sale by third parties.” The referred products are purchased from the third party, not from the Applicant. 

[T]here is no evidence that consumers may purchase goods from Applicant. To the contrary, Applicant recommends products and consumers seeking to purchase them from Applicant's webpage are immediately redirected to third-party retailers offering the recommended products for sale. Only then may consumers purchase the products from the third-party. 

Consumers could not consummate a purchase of goods recommended by Applicant from her own website. Applicant redirecting consumers to a third-party vendor website to purchase a recommended product would not perceive that Applicant is providing online retail store services, and the TTAB found there was no evidentiary basis to contend otherwise. 

The TTAB affirmed that the specimen of use failed to show the applied-for mark in use in commerce in connection with the services.