Tidal Music AS, the music streaming service, scored a victory before the U.S. Patent and Trademark Office's Trademark Trial and Appeal Board (TTAB) earlier this week in an action which defeated a third party's attempt to register the mark #TIDALTUESDAY.

The Case Against #TIDALTUESDAY: Likelihood of Confusion, Dilution and Non Use 

The Rose Digital Entertainment LLC, a startup, "hybrid" entertainment company, sought to register the mark #TIDALTUESDAY in connection with various services, including the advertisement, marketing and promotion of music videos, songs and other forms of digital content. 

In opposing the attempted registration, Tidal Music argued that Rose Digital's mark would cause a likelihood of confusion with its already registered TIDAL trademark and would dilute the value of that mark. Tidal Music also contended that Rose Digital's failure to make bona fide  use of the #TIDALTUESDAY mark, either in commerce or in connection with the services identified in its registration application, rendered the application void under law. 

Over the course of the proceeding, Rose Digital admitted that Tidal Music's use of the TIDAL mark was widespread in connection with music streaming services, and that the mark had garnered considerable fame. However, in attempting to defend its application, Rose Digital claimed it never promoted Tidal Music's content, or any other content, using the #TidalTuesday hashtag, and therefore registering the mark would not cause any confusion among customers. 

The TTAB's Ruling

In light of the complete absence of any bona fide  use of the #TIDALTUESDAY mark, Tidal Music moved for summary judgment, asking the TTAB to deny Rose Digital's pending application. The TTAB agreed, granting Tidal Music's motion and unequivocally rejecting Rose Digital's argument that its use of the #TIDALTUESDAY mark to promote "the coming of the #TidalTuesday product" amounted to bona fide  use in commerce. Further, the TTAB held that "no matter how earnest, the mere preparation to use a mark in the rendering of services is insufficient," adding, "the mere mention of a term on the Internet, divorced from the advertisement and  rendering of an identified service, does not constitute use of a trademark in commerce."

As a result, Rose Digital's #TIDALTUESDAY application was refused.

To read the full TTAB decision, please click here.

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