TTABlog Test: Is this Word+Design Mark, with BLOCKOUT Disclaimed, Inherently Distinctive?

The USPTO refused to register the proposed composite mark shown below, for light-blocking plastic films and labels [BLOCKOUT disclaimed], finding the mark to be merely descriptive of the goods under Section 2(e)(1). With the literal portion disclaimed, the question "revolves around the other elements in the proposed mark and whether they render the mark inherently distinctive as a whole." The Examining Attorney argued that the background is a "basic design." Applicant argued that "[t]he interplay between the inner filled rectangle containing BLOCK, the absence of any rectangle around OUT, and the contrasting use of positive and negative space creates a cohesive design that communicates meaning beyond the literal wording." How do you think this appeal came out? In re Brook & Whittle Limited, Serial No. 98590492 [not precedential] (Opinion by Judge Jennifer L. Elgin).

The Board noted that Applicant did not make a claim of acquired distinctiveness, and therefore the stylization of BLOCKOUT and the design must create a separate and inherently distinctive impression. The Examining Attorney acknowledged that if descriptive or generic wording is presented in a distinctive display or design, the mark as a whole may be registered with a disclaimer of the unregistrable component. See In re Sadoru Grp., Ltd. [TTABlogged here].

The Board found that the proposed mark "can be seen as more than mere non-stylized text superimposed on a geometric background design."

Arguably, the differently colored rectangle and contrasting superimposed text create a commercial impression separate and apart from the disclaimed wording. The concept of positive and negative space is apparent in the mark and would remain so even when rendered in colors other than black and white. The placement of the word BLOCK within the rectangle (i.e., a block) can evoke the act of blocking light. The rectangular design is more than a mere background carrier for the contrasting superimposed block text.

The Examining Attorney's evidence showed that both the wording BLOCKOUT and the light-blocking function of the goods are described in the trade. "But that evidence bears on the descriptiveness of the wording, which Applicant has conceded through its disclaimer; it does not establish that the design and stylization immediately convey the light-blocking characteristic of the goods."

To the contrary, discerning the interplay of positive and negative space, and connecting that visual treatment of the design and text to the light-blocking nature of the films and labels, arguably requires imagination, thought, and perception on the part of someone who knows what the goods are to reach a conclusion about their nature, even when combined with the disclaimed matter. * * * Reasonable minds can differ on the distinctiveness of the design and the question of whether the mark as a whole is merely descriptive of the goods in the application. We have doubt about that question and resolve that doubt in favor of Applicant.

And so, the Board reversed the refusal to register.

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TTABlogger comment: I don't get it. Compare this decision to the SERIAL decision [TTABlogged here], in which the Board found that the two composite marks shown below [with SERIAL disclaimed] were not inherently distinctive.

Text Copyright John L. Welch 2026.