TTAB Affirms Failure-To-Function Refusal Of Graphic Tool Used By DJ's For Harmonic Compatability

The Board affirmed a refusal to register the design mark shown below, finding that the design is a graphic tool used by DJs to discern harmonic compatability, and does not function as a trademark for "Computer software for music analysis and processing; computer software for manipulating, mixing, and performing music and sounds" and for "Providing advice and information in the field of DJ'ing methodology and the analysis, selection and arrangement of music and sound recordings." In re Mixed in Key LLC, Serial No. 87789666 (August 27, 2019) [not precedential] (Opinion by Judge Jonathan Hudis).

The critical question in failure-to-function cases is whether the proposed mark would be perceived as a source indicator for the involved goods or services. To make this determination, the Board looks to the specimens of record and other evidence to discern how the proposed mark is actually used in the marketplace.