## Facts

- Dr Pepper Company applied to register “PEPPER MAN” as a service mark for “sponsorship and operation of contest services.”
- The mark was used in a promotional contest intended to increase sales of DR PEPPER soft drinks.
- Under the contest, cash prizes were awarded to selected households based on the quantity of unopened DR PEPPER products or “I’M A PEPPER” cards in their possession.
- “I’M A PEPPER” cards could be obtained free from Dr Pepper or its bottlers, and prizes were also awarded to randomly selected shoppers near stores selling DR PEPPER if they possessed required items.
- Dr Pepper’s agent, called the “PEPPER MAN,” distributed awards, and “PEPPER MAN” appeared on contest promotional materials.
- The PTO refused registration, and the TTAB affirmed, concluding the contest activity was incidental to selling Dr Pepper’s goods and not a separately recognizable service.

## Issues

1. Whether operating a promotional contest designed to advertise and increase sales of the applicant’s own goods constitutes a “service” under Lanham Act §§ 3 and 45, permitting registration of a service mark.

## Decision

- The Federal Circuit affirmed the TTAB’s refusal to register “PEPPER MAN” as a service mark.
- The court held that a promotional contest conducted to sell and advertise one’s own goods is not a “service” within Lanham Act §§ 3 and 45 when it is merely incidental to the sale of goods.
- The court agreed that the contest was not “clearly different from, or over and above,” activity normally involved in promoting one’s own products.

## Legal Principles

- A claimed “service” that is incidental to the sale of the applicant’s goods is not registrable as a service unless it is clearly different from, or over and above, the ordinary promotion of such goods.
- Running a contest to advertise and promote the sale of one’s own goods is a routine sales-promotion activity and does not, without more, constitute a separate service for service-mark registration.
- Consumer benefits (e.g., a chance to win prizes) do not convert a sales-promotion device into a registrable service when the activity’s primary purpose is to stimulate sales of the promoter’s goods.
- Courts may give substantial weight to the TTAB’s established interpretation distinguishing registrable services from promotional activity tied to the sale of goods.

## Conclusion

Because Dr Pepper’s contest was a customary promotional method aimed at increasing sales of its own beverages and was not a distinct, independently rendered service, “PEPPER MAN” was not registrable as a service mark under Lanham Act §§ 3 and 45.


In re Dr Pepper Co., 836 F.2d 508 (Fed. Cir. 1987)