Test Your TTAB Judge-Ability: Is “L.A.M.B.” Deceptive for Clothing?
The USPTO refused to register the mark L.A.M.B. for “[c]lothing, namely, jackets, blazers, dresses, skirts, sweaters, jeans, scarves, tops, cardigans, camisoles, shorts, and bustiers; footwear; and headwear,” finding the mark deceptive for the goods under Section 2(a). Applicant indicated that its products are made of cotton or similar material, but contended that “consumers will and do perceive Applicant’s L.A.M.B. mark – with periods or 'dots' between the letters – as an acronym with the letters 'L', 'A', 'M', and 'B' representing 'LOVE', 'ANGEL', 'MUSIC' and 'BABY,' respectively," and that L.A.M.B. is a fashion line created by American singer Gwen Stefani. How do you think this came out? In re LAMB-GRS, LLC, Serial No. 77756492 (September 30, 2014) [not precedential].
The test for determining whether a mark is deceptive under Section 2(a) has been articulated in Budge as: (1) Is the term misdescriptive of the character, quality, function, composition or use of the goods? (2) If so, are prospective purchasers likely to believe that the misdescription actually describes the goods? (3) If so, is the misdescription likely to affect a significant portion of the relevant consumers’ decision to purchase the goods?
Evidence of use and of recognition by consumers and the trade can be considered in analyzing the first and second prongs of the Budge test; that is, such evidence may be considered in determining whether the mark misdescribes the goods and whether prospective purchasers are likely to believe that the misdescription actually describes the goods.
The evidence showed that Gwen Stefani, is a well-known singer and fashion designer. In 2004, her first solo album, “LOVE ANGEL MUSIC BABY,” sold more than seven million copies worldwide. At that time, Ms. Stefani launched a clothing and accessory line under the “brand name” L.A.M.B., an acronym for the name of her album. Sales have exceeded $175 million and here clothing is sold at many major retailers. She has secured four registrations for the L.A.M.B. mark for clothing items “that are similar to those identified in the present application or are items that may be made from lambskin.”
Applicant submitted Wikipedia evidence, media references, retail store website pages concerning the L.A.M.B. mark, as well as third-party registrations for BLACK LAMB, LITTLE LAMB, SHEEP, and WILD PIGS for various clothing items.
The Board acknowledged that the commercial impression of a mark is generally not altered by the presence or absence of punctuation marks. However, “the record in this case shows that Applicant’s L.A.M.B. mark is perceived by relevant consumers and the trade as an acronym that is synonymous with the words “LOVE ANGEL MUSIC BABY.”
Of particular note, Applicant’s much visited website immediately informs a visitor that Applicant’s L.A.M.B. mark is derived from the words LOVE ANGEL MUSIC BABY and the renown of the L.A.M.B. mark, as reflected in the promotional activities, sales figures and unsolicited media coverage, reiterates that understanding. We also point out that the fabrics used in connection with Applicant’s obviously L.A.M.B. “branded” clothing items are discernable when viewing the items in a retail store setting or online.
The Board concluded that consumers will perceive L.A.M.B.” as a trademark and that the words it represents, LOVE ANGEL MUSIC BABY, are arbitrary with respect to Applicant’s identified clothing, headwear and footwear.
And so the Board reversed the refusal.
Read comments and post your comment here
TTABlog comment: I asked my wife if she ever heard of Stefani. She said no. I’ve never heard of her album or her clothing line. I suspect there are more Americans who are unaware of the acronym “L.A.M.B” than are familiar with it. So I have my doubts about this decision.
Note there is nothing in the identification of goods restricting them to clothing items sold by or in in connection with Gwen Stefani. Suppose she assigns the registration tomorrow to a clothing manufacturer who makes no reference to her or her album? Then is the mark deceptive?
Text Copyright John L. Welch 2014.
posted by John L. Welch @ 10/08/2014
11 comments
11 Comments:
I had "No Doubt" about this result. Stefani has a huge following and since she first came out the L.A.M.B. line, it has always explained the significance of the acronym. In addition, my recollection is that the periods remain intact in editorial coverage and marketing. L.A.M.B. signifies more than an album, and I perceive it as a lifestyle brand. Even if the mark is assigned, does it not take with it the goodwill of the business associated therewith? Thus, I agree with the outcome.
I agree with the TTAB's decision. Those of us under the age of 50 know Gwen Stefani and her work -- in both the music industry and the fashion industry.
To quote Gwen Stefani, it's bananas. B-A-N-A-N-A-S.
Acronyms should be handled differently than simple punctuation because the separation of the letters by a period, as is the case here, clearly is intended to convey that each letter stands for something else. It changes the meaning and impression of the mark from simply "lamb" to 4 different words that the consumer may know or not. It doesn't matter that the consumer is even familiar with the acronym but that the consumer when they encounter the mark will think twice about what the acronym might stand for and not simply assume that it relates to what the goods are composed of. It could mean Lambs Against (being) Made Bare. Had it been "Lamb!", "Lamb." or "Lamb?" then yes I would say punctuation has little significance but the nature of an acronym with periods between each letter is clearly intended to convey that this combination of letters has more meaning than simply the word it spells out.
This is no different than the third party registrations cited by the applicant. Why are the marks Little Lamb and Black Lamb not deemed to be descriptive, deceptively misdescriptive or even deceptive of the type of lamb that the the goods are made from? Seems to me that in those cases the addition of the additional term changes the impression created by the mark to something no longer describing the material the goods are made from but in reference to some specific lamb or mascot. It doesn't matter that the consumer is aware of this specific lamb or mascot the additional term changes the impression and calls into question in the consumer's mind whether the registrant is trying to convey that their goods are made from the wool of a black sheep or that it refers to some specific black sheep. Either way the addition of a descriptive term which is usually has little significance changes the perception of the consumer sufficiently that they would not believe that the clothing is made from a little lamb or a black lamb.
Nice. So everyone over 50 doesn't count?
not in this marketplace
Well, nobody over 50 should be wearing those clothes, and if they are, they are confused about way more than trademark law...
I knew L.A.M.B. as a clothing brand (a trademark) and knew it was Gwen's but didn't know the meaning of the acronym. The TTAB made the right decision.
Not if you have never heard of Gwen Stefani.
When someone sells over 30 million records, you have heard her sing, unless you live under a rock.
Oh, we count. I'm (slightly)over 50, but vividly recall the first time I heard and saw No Doubt perform years ago on a TV show. I had no prior knowledge of the group or its music, but recall being extremely impressed by the lyrics, music and style.
I agree with the prior comment about the significance of the acronym perception because L.A.M.B. is not perceived the same as LAMB.
"Now wouldn't that be sweet" to continue the punning homages to their playlist? I'm satisfied the Board did not throw out the baby with the "Bathwater" because Gwen Stefani "ain't no Hollaback Girl."
The 3rd party registrations sound questionable but the decision regarding "L.A.M.B." Does not.
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