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 In re LAMB-GRS, LLC, Serial No. 77756492 (September 30, 2014) [not precedential].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.
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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.