On November 19, 2014, the US Trademark Trial and Appeal Board (TTAB) issued a non-precedential opinion in In re King Productions, Inc. affirming the Trademark Examining Attorney's refusal to register the plaintiff's mark for a single title (Serial No. 76703458 (TTAB, Nov. 19, 2014)).

The trademark applicant sought registration for the mark ROCK YOUR BODY for books and DVDs in the field of dance, exercise and fitness. The Trademark Examining Attorney refused registration based on Sections 1, 2 and 45 of the Lanham Act because ROCK YOUR BODY fails to function as a trademark since it is the title of a single book and a single DVD (15 U.S.C. §§ 1051, 1052 and 1127 ).

On appeal, contrary to previous practice and 55 years of TTAB and US Court of Appeals for the Federal Circuit precedent, the TTAB decided that the basis for refusing registration of a title of a single work should be descriptiveness under Section 2(e)(1) of the Lanham Act, rather than failure to function as a trademark under Sections 1, 2 and 45. The TTAB explained this is because a title of a single work is the ultimate in descriptiveness since there is no other way to describe a work than by its title.

Accordingly, the TTAB concluded that, like other descriptive trademarks, a title of a single work could function as a trademark and be registrable if an applicant makes a sufficient showing that the mark has acquired distinctiveness.

The TTAB then reviewed the record and affirmed the refusal to register the mark because the applicant did not meet the heavy burden of proving acquired distinctiveness.