TTAB Blocks Half-Obliterated Design Mark

There was nothing smooth about the Torre company's attempt to register the design shown below (lined for the colors red and yellow, the yellow region including a swirl design) as a trademark for "fruit puree base for use in the preparation of fruit drinks, smoothies and the like." In re R. Torre & Co., Serial No. 76383794 (December 16, 2004) [not citable].
The Board deemed the sole issue on appeal to be “whether the mark as it appears on the drawing conforms with the mark as it appears on the specimen of use.” In the specimen, “half of applicant’s mark is totally obliterated by wording and other design features. To be more specific . . . by applicant’s word trademark FRUSIA; the generic wording ‘whole fruit smoothie base strawberry’: and the depiction of strawberries.” [The actual usage apparently looked like this:]

Applicant Torre argued that “anytime a mark is a background design mark, it will inherently have overlying elements when used in commerce.” The Board disagreed, noting that Torre had failed to cite a single case “where a design mark . . . was permitted to be registered when said design mark on the specimen was substantially obliterated by wording and/or other designs.”

The Applicant and the Examining Attorney sparred over another issue: whether Torre’s design makes a “separate and distinct commercial impression” apart from the wordings and other designs on the label. The Board, seemingly annoyed, observed that even if the issue in the case may be so construed, and assuming arguendo that “half of applicant’s mark as shown on the specimens makes a ‘separate and distinct commercial impression,’” this does not mean that the entire mark does so. [emphasis in original].

"Because only half of applicant’s mark is visible on the specimen, then applicant’s mark (as shown on the drawing page) cannot make a separate and distinct commercial impression."

In my view, the Board was rather lenient toward this Applicant. I haven't made an exact analysis based on the gridlines in the application drawing, but it looks to me that the mark is more like 75% partially obliterated.