Trade Name Use is not Trademark Use, Says TTAB

Things turned out not so grate for Maple Leaf Cheesemakers in its attempt to register the mark MAPLE LEAF CHEESE CO-OP for "cheese." Considering the only specimen of use, the Board found that Maple Leaf used the phrase only as a trade name and not as a source indicator, and so the proposed mark was not eligible for registration. In re Maple Leaf Cheesemakers, Inc., Serial No. 88663903 (April 8, 2026) [not precedential] (Opinion by Judge Thomas W. Wellington).

Section 45 of the Act defines a trade name as "any name used by a person to identify his or her business or vocation." "If a proposed mark functions solely as a trade name, registration must be refused." See, e.g., Martahus, 3 F.3d at 421. Note that a designation may function as both a trade name and a trademark.

“The question of whether a name used as a trade name also functions as a trademark is one of fact, and is determined from the manner in which the name is used and the probable impact on purchasers and prospective purchasers.” Diamond Hill Farms, 1994 TTAB LEXIS 16, at *2. Factors to consider include whether Applicant has used its full corporate name or entity designation, capitalized its name, utilized its name in the same lettering style as other matter, used its name in a significantly bolder or larger style of type, or displayed its name in a contrasting color. In re Univar Corp., No. 73786565, 1991 TTAB LEXIS 31, at *5.

Here, Maple Leaf's specimen of use (shown above) was a label for its packaged cheese. The proposed mark appears on the bottom line of the label, immediately preceded by the words "Distributed By:" and followed by Maple Leaf's city/state/zip code and website address. The font size, style and color for the “Distributed By:” wording is the same as that for the proposed mark. The Board agreed with Examining Attorney David Brookshire that consumers "will perceive MAPLE LEAF CHEESE CO-OP merely as a trade name, and not as a product source-identifier."

Specifically, “the applied-for mark only has the impression of identifying a business or a vocation, and therefore is an unregistrable trade name.” In contrast, consumers encountering this packaging will view the composite mark, MAPLE LEAF CHEESE with a maple leaf and banner design, that appears stylized, in color, and much more prominently at the top as the source-identifier for the cheese.

The Board observed that whether MAPLE LEAF CHEESE CO-OP is actually a business or entity name is irrelevant. It "does not distinguish Applicant’s goods from those of others. Accordingly, the proposed mark cannot proceed to registration under Sections 1, 2, and 45 of the Act."

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TTABlogger comment: WYHA? I think that I would have amended the basis to intent-to-use, rather than appeal. 

Text Copyright John L. Welch 2026.