TTAB Affirms Failure-to-Function Refusal of DAP Background Design
The Board agreed with Examining Attorney Ramona Ortiga Palmer that the purported mark shown below is a nondistinctive background design that does not function as a trademark for Applicant's "adhesives for household purposes." Applicant DAP did not seek registration under Section 2(f), and so the Board affirmed the refusal. In re DAP Brands Company, Serial No. 77116207 (August 30, 2010)[not precedential].
The Board began by addressing a dispute over Applicant's description of the mark (set out below), but the Board found it acceptable:
The mark consists of a black band extending across the upper portion of the packaging for the goods. The black band has upper and lower edges which extend in straight lines between straight side edges, but the lower edge extends downwardly from left to right away from the upper edge. The dotted outline of the product packaging is intended to show the position of the mark on the packaging for the goods and is not part of the mark.
The Board then addressed the failure-to-function issue. The Examining Attorney submitted various blister-pack background designs used by third parties in order to "segment product packaging into various segmented portions," allowing them to "set off, or quickly call attention to, a particular part of the product package so the consumer can easily find and view the material contained in that part."
DAP urged that its mark is distinctive, and pointed to two prior registrations for marks comprising a band around its products. The Board, of course, pointed out that each case must be decided on its own record, and in any case the two prior registration issued under Section 2(f).
The Board found it "clear" that Applicant's supposed mark is "a background design for applicant's word marks."
[C]ommon geometric shapes such as circles, squares, rectangles, triangles and ovals, when used as background for the display of word marks, are not regarded as trademarks for the goods to which they are applied absent evidence of distinctiveness of the background design alone. *** The “black band” applicant seeks to register is in the shape of a trapezoid that covers the top portion of the blister pack for its adhesives. This trapezoid is very similar to the circles, squares, rectangles, triangles and ovals discussed above, and, as used on the specimen, it does not stand out as a mark by itself.
The third-party uses of background designs of various shapes confirmed that "the purchasing public would be unlikely to regard the black trapezoid applicant seeks to register as identifying and distinguishing applicant's adhesives and indicating source."
And so the Board affirmed the refusal to register under Sections 1, 2, and 45.
Text Copyright John L. Welch 2010.