Thursday, August 31, 2006

TTAB Affirms Refusal of "BLACK EXPO" (Stylized) for Lack of Distinctiveness

Finding that the mark BLACK EXPO in the stylized form below ("BLACK EXPO" disclaimed) lacks sufficient distinctiveness, inherent or acquired, to merit registration on the Principal Register, the Board affirmed a refusal to register the mark for "organizing exhibitions for promoting minority owned businesses." In other words, the Board found that the mark was not sufficiently stylized to merit registration, and it ruled that Applicant'’s Section 2(f) evidence was inadequate to establish acquired distinctiveness. In re Thomas-McCants Media, Inc., Serial No. 76462525 (July 14, 2006) [not citable].

Applicant Thomas-McCants conceded that the term BLACK EXPO is at least merely descriptive for its services (and the PTO'’s evidence established that the mark is "highly descriptive"), but it contended that the mark "as a whole is in a sufficiently stylized form to permit registration," and further that the mark has acquired secondary meaning.

The Board noted that a distinctive display of words is registrable "“in the same way as any distinctive picture."” Here, however, the words BLACK EXPO are displayed in plain block lettering, the only stylization consisting of "“the curls at two of the opposing ends and vague curve of the '‘X,'’ the slight increase in size of the letters of BLACK from left to right, and the very slight '‘fuzziness'’ of the '‘O'’ in EXPO."” The Board found that, "“[c]onsidered together, these minor design elements do not render the mark distinctive."”

As to the Section 2(f) claim, in light of the "“very highly descriptive nature"” of the mark, Applicant'’s scanty evidence (a single website page, but no proof of revenues, extent of advertising, or consumer recognition) was insufficient, despite the fact that Applicant had used the mark in commerce for more than five years.

TTABlog comment: I think that the "X" is rather distinctive and should have been enough to push the mark over the registration line.

Text Copyright John L. Welch 2006.


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