Wednesday, October 12, 2005

Barbecue Grill Maker Falls Flat on its Face in TTAB Appeal

Belgian barbecue grill maker Saey N.V. fell flat on its face in its attempt to register the product configuration shown immediately below as a trademark for barbecue grills and metal products. In re Saey N.V., Serial No. 75826909 (Sept. 21, 2005) [not citable].

Saey said that the mark "consists of two holes and a handle, which are meant to represent and give the appearance of the eyes and nose features of a face on a tubular section of the barbecue." The Board agreed with Examining Attorney Catherine Pace Cain' s contention that this configuration "does not function as a mark and that, therefore, consumers would not perceive the matter as a source indicator for applicant's goods...."

Saey grill

The Board noted that the ventilation handles and holes are a "normal, functional design of barbecue grills, a fact clearly shown by the photographs of competing grills." Despite counsel's creativity in describing the design as a face, the record contained no evidence that Saey refers to the "face" in its advertising or that it promotes the "face" as a trademark, and no evidence of any "look for" advertising. Instead, Saey's brochures refer merely to the function of the holes and handle.

Saey claimed that the mark has become distinctive for its goods under Section 2(f). However, its sales figures (about $1 million over 5 years) were not impressive, and it failed to provide its advertising and promotional expenditures. In any case, there was no evidence that Applicant featured the design as a trademark in its advertising, and no direct evidence that the purchasing public recognizes the design as a source indicator.

The Board's decision may be summarized in four words: "Saey, it ain't so."

Text Copyright John L. Welch 2005.


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