Denying Cancellation Petition, TTAB Finds That Roman Atwood's 'SMILE MORE' Functions As A Mark

The Board dismissed this petition for cancellation of Roman Atwood's registration for the mark SMILE MORE for various goods (stickers, backpacks, shirts) and for retail store service featuring clothing, denying petitioner's claim that the term fails to function as a mark. The evidence of a very small number of third-party uses for related goods was insufficient to undermine the source-identifying significance of the phrase. Disorderly Kids, LLC. v. Roman Atwood, Cancellation No. 92062027 (November 28, 2018) [not precedential] (Opinion by Judge Peter W. Cataldo).

YouTube personality and comedian Roman Atwood

Although Atwood's specimens of use in the underlying application displayed the mark in an ornamental fashion on his goods (e.g., the t-shirt above), his service mark specimens did not. Those specimens showed the SMILE MORE mark used with "The Official Smile More Store" and the "Roman Atwood Pranks" YouTube channel, and "clearly associate the SMILE MORE mark with Respondent."

Moreover, as to the goods, the term SMILE MORE "conveys to the public a secondary source, namely, Respondent Roman Atwood, his YouTube channel and the content he posts there, and is registrable on the Principal Register." In re Paramount Pictures Corp., 213 USPQ at 1112 (in this case, wording on a T-shirt "inherently tells the purchasing public the source of the T-shirt, not the source of the manufacturer but the secondary source.").

Petitioner submitted evidence of a "modest number" of third-party uses of the wording "Smile More" and formatives thereof for t-shirts, hats, stickers, and the like. But the record evidence also showed that Atwood "actively and vigorously polices his SMILE MORE mark and views such uses as...