Test Your TTAB Judge-Ability: Has This Pizza Slice Mark Been Mutilated?
Hot Stuff Foods, LLC applied to register the mark shown first below, for food products and services, based on an intent-to-use. When it submitted its statement of use, it also submitted an amended drawing, shown second below. The PTO refused registration on the ground that the mark shown on the amended drawing constitutes a material alteration of the mark shown in the original drawing, in violation of Rule 2.72(a)(2). What do you think? In re Hot Stuff Foods, LLC, Serial No. 77392514 (March 8, 2013) [not precedential]
The Examining Attorney contended that the original drawing shows a "much more stylized" version of a pizza slice. Several lines and circular designs have been deleted, and there is no shading in the original. She urged that the amended version depicts "a pretty thick crusted pizza whereas the original drawing shows a thinner crusted pizza with various toppings on it."
Trademark Rule 2.72(a)(2) provides that an applicant may amend the drawing of its mark if the proposed amendment "does not materially alter the mark." The general test is whether the change would require the mark to be republished "in order to fairly present the mark for purposes of oppostion." If the amended mark is sufficiently different to require re-publication, then the amendment is unacceptable.
The Board found that the amended drawing here is not a material alteration of the original.
The two marks create the same commercial impression: the words HOT STUFF PIZZA superimposed on a pizza slice. Although the slices of pizza in the original and amended drawings have specific differences, it must be remembered that the mark is not solely the design portion. The words HOT STUFF PIZZA are clearly the dominant part of the mark, and the nature of the mark is not changed by the proposed amendment. The modified mark contains the essence of the original mark, and the new form of the mark creates the impression of being essentially the same mark as the mark in the original drawing.
Ans so the Board reversed the refusal.
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TTABlog note: Well, how did you do?
Text Copyright 2012, Photograph Copyright 2006, John L. Welch.