TTAB Affirms Refusal of Clear Cube Package for Parlor Games as Not Inherently Distinctive

Ruby Mine, Inc. applied to register as a trademark its clear plastic cube packaging for "parlor games," but Examining Attorney Edward Fennessy refused registrations on several grounds, including failure to function as a trademark. Applicant did not claim acquired distinctiveness, so the question became whether the packaging was inherently distinctive. The Board agreed with the Examining Attorney and affirmed the refusal. In re Ruby Mine, Inc., Serial No. 85287700 (April 16, 2013) [not precedential].

The alleged mark was described as a "two-piece, clear plastic, hollow cube having ... walls sufficiently thick to produce an aesthetic prismatic effect at the wall ends as a function of ambient light conditions." The Board applied the CCPA's Seabrook test to determine whether the proposed packaging configuration was inherently distinctive.

Under Seabrook, the Board considers whether the configuration is (1) a common basic shape or design; (2) unique or unusual in a particular field: (3) a mere refinement of a commonly adopted and well known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods; or (4) capable of creating a commercial impression distinct from the accompanying words.

The Examining Attorney relied on cube-shaped parlor games (including some of clear plastic, just like that of Applicant), clear plastic card holders (some cubic, not necessarily for games), cube-shape plastic display cases (for golf balls and baseballs), and general cubic packaging, all to show that Ruby Mine's packaging comprised a common design and/or a mere refinement of a well-known form of trade dress for the goods.

The Board was convinced that "a cube shape is a common shape for packaging of games and is a mere refinement on the ubiquitous, rectangular, box-shaped packaging." It found that the described aspects of the applied-for mark are mere refinements of common attributes of parlor games.

Moreover, the "aesthetic prismatic effect" of Ruby Mine's packaging was merely incidental to the use of transparent plastic and is not likely to create its own commercial impression. In fact, in its brief, Applicant admitted that this effect is "an unavoidable effect of the overall design" under certain light conditions.

Ruby Mine submitted a declaration from its President and founder, stating that he had never seen any packaging for game cards that was even remotely similar to the subject cube-shape package. The Board observed that, even accepting those assertions, they did not overcome the evidence submitted by the PTO.

The Board therefore affirmed the refusal to register.

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Text Copyright John L. Welch 2013.