Thursday, July 01, 2010

Precedential No. 25: "CLOTHING FACTS" Not Functioning as a Trademark, Says TTAB

In a precedential ruling, the Board affirmed a refusal to register the mark Clothing Facts in standard character form for various clothing items, on the ground that the mark as appearing on the specimens of use functions as informational matter and not as a source-identifier. In re T.S. Designs, Inc., 96 USPQ2d 1669 (TTAB 2010) [precedential].

Applicant's original specimen

Examining Attorney Benjamin U. Okeke agreed with Applicant T.S. Designs that the "Clothing Facts" label "is reminiscent of the 'Nutrition Facts' label required for food products by the United States Food and Drug Administration (USFDA)."

The Board appreciated "that this imagery involves a humorous play on the USFDA's ubiquitous nutrition labeling device and is designed to communicate applicant's commitment to social justice and environmental stewardship."

However, in this context, we agree with the Trademark Examining Attorney that prospective consumers will view the designation Clothing Facts, as used on the entire label device, as informational matter, not as a source identifier for the shirts. The likelihood that consumers will so perceive these words on the label is enhanced because the label contains two clear source identifiers, namely "" and "printing t-shirts for good," the latter specifically bearing the informal "TM" designation, while the phrase Clothing Facts does not.

And so the Board affirmed the refusal to register.

TTABlog comment:
Judge Bucher, who penned the recent CELLAR 360 decision (here), takes a more consumer-oriented, qualitative view of trademark specimens -- i.e., what would the consumer perceive? -- rather than a technical approach that emphasizes the size of the type, the placement of the term, the nearness on the page to a picture of the product, etc. Am I making sense?

Here, maybe the solution for Applicant is to put a "TM" next to Clothing Facts?

Text Copyright John L. Welch 2010.


At 1:00 PM, Anonymous Anonymous said...

I am not sure if using a "TM" would help here. I think the problem is that they chose a very descriptive mark and then made it worse by using it in a descriptive sense.

If the mark had been an arbitrary mark like XERZES and it had been used in the same location I expect it would have been considered a proper specimen.


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