This week’s post is in response to a fellow intellectual property attorney’s inquiry asking my opinion on the following matter (which he probably would have preferred in a 3-4 sentence email, but oh well). On May 4, 2009, a company out of California called Pulser Music Services, Inc. (“Pulser”) filed an application to register the trademark RDIO. This application is pending for a variety of products and services, most notably “streaming of audio materials over the Internet, mobile devices, wireless internet networks or systems, and other computer and electronic communication networks,” “music download services provided over the Internet, mobile devices, wireless internet networks or systems, and other computer and electronic communication networks,” and “broadcasting and transmission of streamed and downloadable digital audio and video content via computer and other communication networks.” I don’t know about you, but if I saw the RDIO mark in promotional materials that advertise and explain Pulser’s services, I would probably pronounce the mark as the generic word “radio.” However, on Pulser’s website, it claims that the mark “is a combination of the words radio and audio, and we pronounce it r-dee-o.” In my humble opinion, this is absolute bologna since RDIO does not incorporate any phonetic element of the term “audio” that is separate and distinct from any phonetic element of the term “radio.” It’s merely “radio” spelled by your average 4 year old.
Anyway, about three months later, a trademark examining attorney at the Trademark Office reviewed Pulser’s application and specifically requested that Pulser “specify whether the letters RDIO have any significance in the computer software, internet, or entertainment industry or as applied to the goods/services described in the application.” In response, Pulser bluntly indicated that RDIO “has no significance in the relevant trade or industry or as applied to the goods/services listed in the application.” Relying on Pulser’s representations, the Trademark Examining Attorney allowed Pulser’s application to be published for opposition on September 30, 2009 (it wasn’t challenged by any third party) and the Notice of Allowance was issued on January 12, 2010, thereby giving Pulser six months to provide proof to the Trademark Office that it is actually using the mark in interstate commerce in connection with all of the products and services recited in the application.
If you couldn’t already tell from my tone, I strongly believe the Trademark Office made a gross error in not refusing to register Pulser’s RDIO mark on the basis that it is generic for many of the products and services listed in the application. As many of you probably already know, generic terms are not trademarks and can never be protected if their primary meaning is the actual name of the product or service with which they are being used. For instance, the word “soap” for body cleansers is generic, as is the word “pencil” for certain writing utensils. This tenet also holds true for misspellings of generic terms that do not materially change their common meaning. For example, the word “photo” does not become any less generic for photography products and services by spelling it “foto” unless that spelling alters the meaning or connotation of “photo.” That is why the owners of FOTO FANTASY (Reg. No. 2769186), FOTO QUICK (Reg. No. 2997542), and FIRST FOTO (Reg. No. 2926355) were required to disclaim exclusive rights to use “photo” apart from the marks as a whole. Unquestionably, the word “foto” in these situations is simply an intentional misspelling and nothing more.
Similarly, Pulser’s RDIO mark is clearly the word “radio” with the second letter missing. Contrary to Pulser’s assertions, the general consuming public would primarily recognize RDIO as merely a misspelling or variation of “radio” when used in connection with Pulser’s audio broadcasting and streaming services. Even if you believe Pulser’s nonsensical statement that RDIO is a fusion of “radio” and “audio” that should be pronounced “r-dee-o,” wouldn’t it have made more sense for Pulser to apply to register ARDIO? Now, that looks like a combination of those two words. But, of course, it doesn’t look much like “radio,” now does it? It’s almost like Pulser came up with it reasoning for choosing RDIO after the fact in order to help bolster its defense to a possible challenge.
In sum, RDIO is no more a trademark for audio broadcasting services than FOTO is for photography services. If u disagre, plz feel fre 2 leav a komment.