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TTAB Affirms PTO Refusal to Amend "FIT TEST" Application from Services to Goods

Applicant Aurel A. Astilean and his Application failed to fit the PTO test when he attempted to register the mark FIT TEST for "fitness exercise and instruction, not including fitness testing or assessment in a health club." The problem arose because Astilean's specimen of use was a photocopy of the opening screen of an exercise DVD. Examining Attorney Andrea P. Butler found the specimen unacceptable for the recited services. Astilean tried to amend the application from Class 41 services to Class 9 goods, but that was a no-go as well. In re Aurel A. Astilean, Serial No. 76688551 (February 9, 2009) [not precedential].As to the attempted amendment of the application to class 9, the Board agreed with the PTO that "applicant's proposed amendment does not merely clarify or limit the original identification of services, but rather impermissibly broadens it" in violation of Rule 2...continue to full post

Full post as published by The TTABlog on March 05, 2009 (boomark / email).