Friday, May 09, 2008

TTAB Overturns PTO Refusal, Finds "LAY'S GET YOUR SMILE ON" to be Unitary Mark

Finding that Frito-Lay's mark LAY'S GET YOUR SMILE ON!, as it appears on the specimen of use (shown immediately below) is a unitary mark, the Board reversed the PTO's refusal to register. The Examining Attorney had maintained that the applied-for mark actually consists of two marks, LAY'S and GET YOUR SMILE ON! In re Frito-Lay North America, Inc., Serial No. 78555200 (May 2, 2008) [not precedential].

In the Final Refusal, the Examining Attorney made the strange argument that the fact that Frito-Lay had registered the mark in the design form shown below (with the same specimen of use) was evidence that "applicant recognizes this application contains two separate marks."

"The question in this case is whether the applied-for mark is a registrable unitary composite mark engendering a unique and distinct commercial impression. *** Applicant cites to cases involving mutilation; however, the issue in this case is the converse of the situation where the applied for mark is missing integral subject matter as show on the specimen...."

The Board observed that this question "is resolved by comparing the specimens to the drawing and our analysis is necessarily subjective."

"On the back of the packaging, the LAY's design appears immediately above the phrase GET YOUR SMILE ON! The phrase is curved up at the ends like a smile and it both follows the contour of the circular LAY's design and it is in close proximity thereto. Therefore, we conclude that the commercial impression fostered by applicant on the specimen of use is that of a single unitary mark."

Therefore, the Board reversed the refusal.

Text Copyright John L. Welch 2008.


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