The TTABlog<sup>®</sup>

TTABlog Test: Are LA & Design and LAV (Stylized) Confusable for Drinking Glasses?

In this Section 2(d) opposition, Opposer NameGürok alleged that Applicant TGL Golf's mark shown first below, is likely to cause confusion with its two registered marks shown second below, all for, inter alia, drinking glasses. Since the goods overlap, the Board presumed that these goods travel in the same channels of trade to the same classes of consumers, and it found that the goods are household items purchased with ordinary care. Once again, it all boiled down to the marks. How do you think this came out? NameGürok Turizm Ve Madencilik Anonim Sirketi v. TGL Golf Holdings, LLC, Opposition No. 91293362 (July 15, 2026) [not precedential] (Opinion by Judge Cheryl S. Goodman).

Opposer NameGürok argued that the marks are confusingly similar in terms of appearance and sound because both of its marks contain the letters “LA,” with the lack of the letter “V” in applicant’s mark being "a subtle difference that consumers will not readily perceive." Applicant TGL Golf pointed to the differences in "font, style, and placement," as well as the design element in its marks, as distinguishing features.

TGL Golf maintained that its mark is pronounced as the separate letters “L” and “A” whereas Opposer’s LAV (stylized) marks are pronounced either as the “lav” portion of “lavatory,” or the “lav” portion of “lava.” TGL Golf asserted that the connotation and commercial impression opposer's marks differ with its mark because its mark has a well-known geographic connotation of Los Angeles, whereas opposer’s marks have no English word meaning and are “fanciful.” The Board went with TGL Golf.

When we consider the marks in their entireties, we find the marks are different in appearance and create different commercial impressions. Opposer’s marks are three-letter stylized marks where the letters LAV are recognizable; LAV has no meaning in English in relation to Opposer’s goods. Applicant’s mark is a composite mark consisting of highly stylized lettering which is less discernible or readily perceived as the letters LA, and incorporating a golf club design element, which adds to the overall commercial impression. LA in Applicant’s mark has meaning as a geographic term for Los Angeles and has been disclaimed.

The Board found that, although the marks share the letters LA, "the degree of stylization of LA in Applicant’s mark is so high that it more akin to a design mark rather than a stylized display of the letters LA." If therefore found that TGL Golf's mark "is not similar in sound, appearance, connotation or commercial impression to Opposer’s marks," and that the first DuPont factor weighed strongly in favor of a conclusion that confusion is unlikely.

Because TGL Golf's mark is" not similar in sound, appearance, connotation or commercial impression to Opposer’s marks," the first DuPont factor weighed heavily in favor of a conclusion that confusion is unlikely, and was dispositive.

And so, the Board dismissed the opposition.

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TTABlogger comment: WYHO?

Text Copyright John L. Welch 2026.

Rejecting Incongruity Claim, TTAB Finds EGGBAR to be Merely Descriptive of Restaurant Services

The Board upheld a refusal to register the proposed mark EGGBAR for "restaurant services featuring breakfast sandwiches, hash browns, coffee, matcha, and fruit drinks," finding the mark to be merely descriptive of the services. Applicant argued that EGGBAR is an incongruous combination of terms because "[w]hen consumers encounter the term 'BAR,' their immediate association is with alcohol service, not with a particular food or menu item." The Board didn't buy it. In re Eggbar Holdings, LLC, 98619785 (July 14, 2026) [not precedential] (Opinion by Judge Elizabeth K. Brock).

Examining Attorney Harrison Neidish relied on dictionary definitions of "egg" [“[t]he oval, thin-shelled reproductive body of a bird, especially that of a hen, used as a food"]” and BAR [a. A counter at which drinks, especially alcoholic drinks, and sometimes food are served. b. An establishment or room having such a counter]. Another dictionary noted use of "bar" in a “shop sense … a coffee bar.”

A screenshot of applicant's menu pictured seven sandwiches, including a “steam-baked egg,” either in the description or visible in the sandwich depicted. [website here]. "This shows that the 'breakfast sandwiches' listed in the identification of services all include eggs." Other evidence showed that "eggs are part of restaurant meals and that restaurants include bars."

The evidence establishes that the terms EGG and BAR retain their descriptive meaning in the proposed mark EGGBAR. An egg is a food sold in restaurants, and bars can also sell food; EGGBAR restaurant services immediately informs purchasers that the menu will include foods containing eggs. Additionally, consumers are used to phrases like “coffee bar,” confirming that the term "bar" is not limited to alcoholic drinks (as noted in the dictionary definitions).

Applicant argued that the proposed mark does not immediately describe its services because the “reasoning process requires mental steps and inference” since EGGBAR is an incongruous combination of terms. However, Applicant offered no evidence to support its assertion that consumers would associate the mark "with alcohol service and not with a particular food or menu item." Moreover, this argument was belied by the dictionary evidence that a "bar" may serve food, by the dictionary example of a "coffee bar," and by the evidence of food restaurants that include bars and bar service.

Finally, applicant contended that EGGBAR "does not fall within the category of marks whose meanings are immediately apparent." The Board pointed out, however, that "[d]escriptiveness of a mark is not considered in the abstract. Rather, it is considered in relation to the particular goods for which registration is sought, the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods because of the manner of its use or intended use." In short, "the question is not whether someone presented with only the mark could guess what the goods or services are. Rather, the question is whether someone who knows what the goods or services are will understand the mark to convey information about them."

The record shows that in connection with Applicant’s services, purchasers would recognize EGGBAR as immediately conveying knowledge of a quality of Applicant’s “restaurant services featuring breakfast sandwiches” and other foods, namely, that the menu will include breakfast sandwiches containing eggs served in a “bar” setting or at a counter.

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TTABlogger comment: WYHA?

Text Copyright John L. Welch 2026.

FLASHIN' ASSASSIN Confusable with ASSASSIN for Fishing Lures, Says TTAB

The Board granted a petition for cancellation of a registration for the mark FLASHIN' ASSASSIN for, inter alia, fishing lures, concluding that confusion is likely with the registered mark ASSASSIN for inter alia, fishing lures. With the goods overlapping in-part and the channels of trade and classes of customers presumed to be the same for the overlapping goods, it all boiled down to the marks, with the second and third DuPont factors weighing "heavily" against the applicant. Bass Assassin Lures, Inc. v. Flashin Assassin Fishing Lures, L.L.C., Cancellation No. 92085824 (July 10,2026) [not precedential] (Opinion by Judge Wendy B. Cohen).

Petitioner Bass Assassin argued that its mark ASSASSIN is commercially strong, based on sales of lures under the "Bass Assassin and various other Assassin trademarks" since 1986. Petitioner testified that it had sold more than 29 million bags of fishing lures in connection with the Assassin Family of Marks. However, its financial figures were not broken down by mark and there was no evidence of market share that would allow the Board to assess the import of this evidence. The Board concluded that the evidence did not "suggest a level of commercial success and brand recognition that would indicate Petitioner’s [ASSASSIN] mark should be accorded more legal protection under the fifth DuPont factor."

As to the marks, the Board acknowledged that "the presence of FLASHIN’ contributes to the connotation of Respondent’s mark as a whole and certainly lends something to Respondent’s mark that is not present in Petitioner’s mark. Also, the presence of FLASHIN’ may reduce the visual similarities of the marks in a side-by-side comparison or help to differentiate the parties’ marks in sound when fully articulated." Nonetheless, the Board found the marks to be similar in appearance, sound, connotation and commercial impression. In comparing the parties’ marks, the Board noted that "where one party’s mark incorporates the entirety of the other party’s mark, the fact that it does typically increases the similarity between the two."

The Board found the term FLASHIN' to be a "descriptive or at least highly suggestive term," since respondent's lures "flash in cases where the sun can hit them when in use," according to respondent. Therefore, "FLASHIN’ is less significant in creating the connotation and commercial impression of Respondent’s mark and has little, if any, source-identifying significance."

Despite any rhyming qualities FLASHIN’ ASSASSIN might have, it does not impart a separate and distinct overall commercial impression. There is nothing of record that supports the conclusion that the rhyming quality imparts a new or different meaning to ASSASSIN or that FLASHIN’ does not retain its descriptive significance in relation to Respondent’s goods.

The Board noted that it is also likely that customers familiar with respondent’s lures may mistakenly associate petitioner’s ASSASSIN mark with Respondent or assume that the goods have a common source, "viewing Petitioner’s ASSASSIN mark as an abbreviated form of Respondent’s FLASHIN’ ASSASSIN mark." "In addition, consumers may shorten Respondent’s mark to ASSASSIN alone given the propensity of consumers to shorten marks when speaking."

The Board found the fourth, seventh, and eight factors to be neutral, and concluded that confusion as to source is likely.

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TTABlogger comment: Fishing tends to make me drowsy, and so did this opinion. You might say it wasn't alluring.

Text Copyright John L. Welch 2026.

TTABlog Test: Is BLANCO (Stylized) Confusable with BLANCO LABEL for Clothing?

Applicant Matthew Sinnerich applied to register the mark shown below, for "Hats; Pants; Shirts; Shorts; Socks; Collared shirts; Polo shirts; T-shirts; Tops as clothing," but Examining Attorney Catherine Lee concluded the confusion was likely with the registered mark BLANCO LABEL for "Clothing, Namely, Shirts, Pants, Sweatpants, Jeans, Sweatshirts, Bandanas, Hats, Shoes, Sox, Vests, Sweaters, Scarves, Pajamas, Sleepwear, Rain wear, Blouses, headbands, Belts for Clothing, Hosiery, Swimwear" [LABEL disclaimed]. The goods overlap and the marks share the word BLANCO. Was there any hope for Mr. Sinnreich in this appeal? In re Matthew Sinnreich, Serial No. 98713935 (July 7, 2026) [not precedential] (Opinion by Judge Cheryl S. Goodman).

The Board unsurprisingly found the dominant portion of the cited mark to be BLANCO because the term LABEL had been disclaimed and was entitled to less weight in the Section 2(d) analysis. "Applicant’s mark BLANCO (stylized) is subsumed within the cited mark, and where the entirety of one mark is incorporated within another, likelihood of confusion has frequently been found."

As to appearance, Applicant ’s mark is in stylized form while the cited mark is in standard character form without a claim to any particular display. A standard character mark may be presented in any manner, including in the same size, font, and uppercase and lowercase letters as Applicant’s stylized mark.

Applicant Sinnreich argued that the word LABEL creates "visual, audio, and connoted differences between marks" in particular in "the textual portions, visual appearance, and pronunciations" with the connotation and commercial impression of a "luxurious brand identity" versus a "product line or a collection." The Board was unmoved.

Sinnreich also argued that BLANCO is a two-syllable, one-word "stand-alone term" consisting of six letters while BLANCO LABEL is a two-word "compound expression" having four syllables and 11 letters with 'elongated" pronunciation. The Board was unimpressed. "Although there are differences in appearance and pronunciation between the marks due to the additional term LABEL in the cited mark, consumers do not focus on the number of syllables, letters, or words in each mark."

Sinnreich claimed that the marks have "divergent meanings:" his mark "conveys a singular concept - whether as a surname, a geographic reference, or the Spanish word for 'white'" whereas the cited mark conveys "a compound idea in which the term LABEL modifies the meaning of BLANCO" conveying the idea of "a sub-brand or a labeled series of goods." According to Sinnreich, his mark evokes a luxurious brand and "thoughts of penmanship [LOL - ed.], craftsmanship and high quality" while BLANCO LABEL evokes the impression of "a product line, a collection; or a branded tag." The Board didn't buy it.

BLANCO in both marks could evoke the same meaning (surname, geographic name, or Spanish word for white) and give the impression of the name of a clothing label or luxurious brand identity with Applicant’s BLANCO (stylized) mark being viewed merely as a variant of Registrant’s BLANCO LABEL mark. We find that the marks create similar commercial impressions.

The Board considered the impact of the inclusion of the word LABEL in the cited mark but found that "this difference is not sufficient to overcome the overall similarities of appearance, sound, connotation, and commercial impression resulting from the initial shared term BLANCO, particularly in view of the fallible memories of consumers, who retain general impressions of trademarks." Moreover, the Board noted that consumers have a "penchant" for shortening marks, and found it likely that "consumers would shorten BLANCO LABEL simply to BLANCO in verbalizing and recalling the cited mark."

Finding the mark to be "highly similar" in appearance, sound, meaning and commercial impression, the Board affirmed the refusal.

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TTABlogger comment: WYHA?

Text Copyright John L. Welch 2026.

TTABlog Test: How did These Three Recent Section 2(d) Appeals turn out?

For the past decade, about 90% of Section 2(d) refusals have been affirmed on appeal. A TTAB Judge (now retired) once said to me that one can predict the outcome of a Section 2(d) appeal 95% of the time just by considering the marks and the goods/services. [Apparently, if you just say "affirmed," you will be right 90% of the time. It's the other 5% that's the challenging part.] Here are three recent Section 2(d) appeals. Let's see how you do. [Answer in first comment].

In re MacLan, Inc., Serial No. 98126959 (July 8, 2026) [not precedential] (Opinion by Judge David K. Heasley). [Section 2(d) refusal of the mark TRUGRIT for “power-operated abrasive wheels, namely, abrasive grinding wheels for metals (in Class 7) in view of the registered mark TRUE GRIT for “abrasive lapping compounds for industrial sharpening and grinding” (Class 3).]

In re Huda Beauty Limited, Serial No. 98565357 (July 9, 2026) (Opinion by Judge Christen M. English) [Section 2(d) refusal to register the mark CHERRY BLOSSOM for “cosmetic powder; cosmetic face powder; cosmetic under eye powder; make up setting powder; powder compacts sold filled with cosmetic powder; loose powder for the face and under eye area; pressed powder for the face and under eye area; skin color correcting liquid for cosmetic purposes” in view of the identical mark registered for "false eyelashes."]

In re DEO Company LLC, Serial No. 99057517 (July 10, 2026) [not precedential] (Opinion by Judge Robert Lavache). [Section 2(d) refusal of the mark DEO for “Non-electric diffusers for air fragrancing preparations, namely, reusable containers with releasably joined parts to hold and dispense scents in a space" (Class 21) in view of the identical mark registered for "air fragrance reed diffusers” and “aromatics essential oils" in Class 3.]

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TTABlogger comment: How did you do? See any WYHA?s ?

Text Copyright John L. Welch 2026.

Rejecting Extrinsic Evidence, TTAB Finds FUNTASYA Confusable with FUNTASIA ADULT SHOP for Clothing and Retail Store Services

The Board sustained a Section 2(d) opposition to registration of the mark FUNTASYA for various clothing items and online retail services featuring clothing, concluding that confusion is likely with the registered mark FUNTASIA ADULT SHOP in the logo form shown below, for "Retail store and online retail store and wholesale store services featuring adult products, videos, DVDs, magazines, toys, novelties, lingerie and leather clothing" [ADULT SHOP disclaimed]. The Board found the marks to be "overall similar," and the goods/services overlapping, rejecting applicant's attempt to import restrictions into the identification of goods "based on alleged real world conditions." In re Stefan Thaler, Serial No. 79395386 (July 7, 2026) [not precedential] (Opinion by Judge Christen M. English).

The Marks: The Board unsurprisingly found FUNTASIA to be the dominant part of the cited mark "because it is the first literal element in the mark and it is displayed in a much larger font than THE ADULT SHOP, which has been disclaimed." As to the words FUNTASYA and FUNTASIA, "[a]verage consumers with a general recollection are unlikely to notice or remember the one letter difference in the last syllable of the words." Since applicant’s mark is in "block letter" form, it "may be displayed in a font style similar to the font style used for the term FUNTASIA in the Cited Mark, which would increase the visual similarity between the marks." The two words are likely to be pronounced the same way.

This similarity in sound is significant because FUNTASIA is the dominant element in the Cited Mark. Indeed, consumers may drop the non-distinctive phrase THE ADULT SHOP when referring to Registrant’s services.

FUNTASYA and FUNTASIA both call to mind the words “fantasia” and “fantasy,” with the registered mark carrying "a connotation and commercial impression of a fantasia or fantasy of a fun, sexual nature." Nonetheless, "the marks still share a similar general connotation and commercial impression related to a fun fantasia or fantasy."

To the extent that for some consumers the marks do not call to mind the words “fantasia” or “fantasy,” the marks will be perceived as coined terms with no particular meaning. Because the dominant term FUNTASIA in the Cited Mark is nearly identical to Applicant’s coined mark FUNTASYA, the marks would likely be perceived the same, albeit with the Cited Mark conveying an added sexual connotation

The Board concluded that consumers are likely to perceive applicant's mark "as a variation of the Cited Mark identifying a line extension or to otherwise mistakenly believe that Applicant’s goods and services are associated with or sponsored by Registrant."

The Goods/Services: Applicant argued that registrant’s services, trade channels are limited to sexual products sold through adult sex shops and to consumers seeking intimate products that are purchased only after age verification. The Board, however, pointed out that there are no such restrictions in the cited registration.

Registrant’s identification does not include any limitations on the nature of these services, the trade channels through which they are sold or the relevant consumers. Nor may we consider extrinsic evidence on how Registrant uses its mark to narrow these services.

The Board focused its analysis on registrant’s “retail store and online retail store and wholesale store services featuring … leather clothing.” Applicant's goods are "clothing, namely, shirts, pants, hats, shorts, jerseys, hoodies," an identification broad enough to encompass leather shirts and pants. Because services featuring leather clothing encompass a subset of applicant’s goods, namely, leather pants and shirts, "here is overlap on the face of Applicant’s Class 25 and Registrant’s Class 35 identifications."

Applicant’s Class 35 services include “retail online store services featuring clothing; retail and wholesale online store services featuring clothing.” These services are broad enough to encompass Registrant’s “retail and online retail store and wholesale store services featuring … leather clothing.”

As to applicant's clothing items, where “one party uses its mark on goods that are sold in retail [and wholesale] stores that customarily vend those goods, it is clear that the trade channels and customers overlap.” With respect to the services, because they are in-part legally identical and there are no restrictions as to trade channels or consumers in the identifications, the Board presumed that the identical services travel through the same channels of trade to the same purchasers.

As to purchaser care, applicant asserted that "it is self-evident that the respective purchasers of Applicant’s and Registrant’s goods and services exercise entirely different levels of discernment." "Again, this argument relies on a restriction (goods sold through an adult sex shop) that is not identified in Registrant’s identification.

Finding that none of the DuPont factors favored applicant, it sustained the opposition.

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TTABlogger comment: Do you think there is any likelihood of confusion in the real world?Should applicant seek restriction of the registration under Section 18?

Text Copyright John L. Welch 2026.

TTAB Finds BALLETCOLLECTIVE to be Generic for . . . . . Guess What?

The Board upheld a refusal to register the proposed mark BALLETCOLLECTIVE for entertainment services in the nature of dance and ballet performances, finding the term to be generic for the services. The applicant argued that the lack of a space between the words was significant, but that argument fell flat. In re BalletCollective Inc., Serial No. 97567146 (July 7, 2026) [not precedential] (Opinion by Judge Thomas. W. Wellington).

There was no disagreement that the genus at issue was defined by the recitation of services in the application, which the Board summarized as "entertainment services in the nature of dance and ballet performances." The relevant consumers are "ordinary purchasers, or attendees, of entertainment services in the nature of dance and ballet performances." The question then was "whether these consumers understand BALLETCOLLECTIVE as primarily referring to a class or category of entertainment services in the nature of dance and ballet performances."

Relying on dictionary definitions of the constituent terms, evidence of third-party use of "ballet collective(s)" in connection with ballet performances and entertainment, and use of that term as part of third-party trademarks and trade names, Examining Attorney Amy E. Thomas contended that "the relevant consuming public would understand the term BALLETCOLLECTIVE to refer primarily to a group providing ballet performances and related ballet services including the other services listed in the application."

Applicant argued that the evidence showed use of the component terms only with a space between them, not in a compound form. The Board pooh-poohed that argument, noting the Supreme Court's statement in Booking.com that "[a] compound of generic elements is generic if the combination yields no additional meaning to consumers capable of distinguishing the goods or services."

The words “ballet” and “collective” retain their same defined meanings despite being joined—and consumers will not discern any additional non-generic meaning as a result of their joinder. Rather, the relevant consumers will easily and readily understand BALLETCOLLECTIVE as merely an expression of a “ballet collective,” without the space, and a reference to the genus of services. Simply put, the proposed compound mark, BALLETCOLLECTIVE, conveys the same generic meaning to consumers as the sum its generic component terms—”the entire formulation does not add any meaning to the otherwise generic mark.” See Steelbuilding, 415 F.3d at 1297.

Applicant also pointed to its actual use of the mark in the form "BalletCollective," with the first letter in each component term capitalized. The Board took a different view: "[t]o the contrary, capitalizing the first letter of each word further assists consumers to more quickly identify each generic term. In any event, applicant sought registration of a mark in standard character form, not in the form used by applicant.

[T]he evidence of use of the term BALLET COLLECTIVE in third-party marks or trade names, along with source-identifying matter, e.g., “Ignite Ballet Collective” and “Deep South Ballet Collective,” further establishes that this is a term readily used by others in connection with ballet performances. In other words, the evidence proves that the relevant public perceives BALLETCOLLECTIVE primarily as the genus of services rather than as a source identifier.

The Board agreed with the examining attorney that applicant’s own description of its services on its website was probative and corroborated the genericness of the proposed mark: Applicant describes itself as a "non-profit art collective, "consist[ing] of a rotating group of artists and collaborators" and "with each new collective," it offers entertainment services in the nature of "ballet-based works."

And so, the Board affirmed the refusal.

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TTABlogger comment: If you looked in a telephone directory, would you find a heading "ballet collectives?"

Text Copyright John L. Welch 2026.

TTABlog Test: How did These Three Recent Section 2(d) Appeals turn out?

TTAB affirmances of Section 2(d) refusals are running at about 84% so far this year. Here are three recent decisions. How do you think they came out? [Answer in first comment].

In re AM Hospitality, LLC, Serial No. 98891881 (June 30, 2026) [not precedential] (Opinion by Judge Elizabeth K. Brock). [Section 2(d) refusal of the mark SIDE PIECE PIZZA for "restaurant featuring pizza" [PIZZA disclaimed] in view of the registered mark SIDE PIECE, in standard character form, for "Food and drink catering; Preparation of food and beverages; Providing of food and drink; Restaurant services, namely, providing of food and beverages for consumption on and off the premises; all of the foregoing excluding services involving pizza, private labeled beer, and/or breweries."]

In re GE Precision Healthcare LLC, Serial No. 98098739 (July 6, 2026) [not precedential] (Opinion by Judge Jennifer L. Elgin) [Section 2(d) refusal of the mark OMNI for "Medical apparatus and instruments for use in positron emission tomography/computed tomography (PET-CT) imaging" in view of the registered mark OMNITOM for "computed tomography (CT) imaging machines."]

In re Nawkaw, Inc., Serial No. 98499982 (July 6, 2026) [not precedential] (Opinion by Judge David K. Heasley). [[Section 2(d) refusal of the mark ECOTONE for "Coating compositions in the nature of paint, namely, clear and pigmented coatings specifically formulated for application to concrete and masonry surfaces by professionals, not for retail sale or consumer use, and not for use on wood surfaces" in view of the registered mark ECO-TONES for "interior and exterior stains, sealers and coatings for roofs, siding and timber; wood preservatives; restorative preparations in the nature of stains for wood; and coatings for wood, namely, stains, coatings, sealers, preservatives and restoratives in the nature of stains."]

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TTABlogger comment: How did you do? See any WYHA?s ?

Text Copyright John L. Welch 2026.

Precedential No. 5: Blue-and-White Stripes Trade Dress Lacks Inherent and Acquired Distinctiveness, Says TTAB

The Board upheld a refusal to register a design comprising parallel blue and white stripes (shown below) for frozen confections and confections, fruit drinks, alcoholic beverages, franchising services, and restaurant services (in six classes), finding that the proposed mark is not inherently distinctive and lacks acquired distinctiveness. The Board observed that Applicant Ralph's "blue & white stripes are simply a refinement or variation of the common practice of using alternating colored stripes." As to acquired distinctiveness, "the plethora of third-party uses of blue & white or similar stripes in connection with the same goods and services presents a nearly insurmountable hurdle for any such effort to succeed because they show that such use has not been ‘substantially exclusive.’” In short, “Applicant has not come anywhere close to proving its alternative claim that the proposed trade dress has acquired distinctiveness." In re Ralph’s Famous Italian Ices Franchise Corp., 2026 U.S.P.Q.2d 553 (TTAB 2026) [precedential] (Opinion by Judge Thomas L. Casagrande).

"The mark consists of a repeating pattern of alternating blue and white vertical stripes, which are of equal width and proportion. The repeating pattern appears on a portion of the surface of the goods, on a portion of the packaging for the goods, on a portion of the building facades in which the services are offered, and on displays, marketing and advertising materials associated with the services."

Inherent Distinctiveness: Product packaging trade dress may qualify as inherently distinctive, depending on the evidence. See, e.g., Two Pesos, 505 U.S. at 773-74 (restaurant décor); In re Chippendales USA, Inc., 622 F.3d 1346, 1351 (Fed. Cir. 2010) (design of a costume worn by a service provider, i.e., “trade dress” constituting the “packaging” of the service). Whether such trade dress is inherently distinctive requires an assessment of:

whether it was a ‘common’ basic shape or design,
whether it was [not] unique or unusual in the particular field,
whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods [or services] viewed by the public as a dress or ornamentation for the goods [or services], or
whether it was capable of creating a commercial impression distinct from the accompanying words.

Chippendales, 622 F.3d at 1351 (quoting Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (CCPA 1977)). If the answer to any of the first three Seabrook inquiries is “yes,” the design is not inherently distinctive.

In In re Fantasia Distrib., Inc., No. 86185623, 2016 WL 5866950 (TTAB 2016), the Board adapted and applied this test to a design constituting a repeating ornamental pattern on goods, as follows:

the nature of Applicant’s goods and whether there is an industry practice of ornamenting such goods;
the nature of the pattern, including whether any element of the pattern might be perceived as source indicating if it were standing alone;
how common the pattern is, whether it is composed of common or unusual repeating shapes, whether such shapes repeat in a common or unusual manner, and whether the overall pattern is similar to, or a mere refinement or variation of, a common and well-known form of ornamentation;
the manner in which the repeating pattern appears on the product, including the size and location of the pattern on the product and how much of the product is covered by the pattern; and
whether the pattern creates a distinct commercial impression apart from any accompanying wording and design elements.

As to each class of goods and services, the Board considered the substantial third-party evidence submitted by Examining Attorney Hai-Ly Lam. With respect to the goods in classes 29 and 30 and the restaurant services in class 43, the evidence "overwhelmingly " showed that Ralph's blue-and-white stripes "are simply a refinement or variation of the common practice of using alternating colored stripes." As to the beverages in classes 32 and 33 and the franchising services in class 35, the evidence was not as voluminous but nonetheless showed that "stripes generally are a rudimentary form of ornamentation and Applicant uses them in an unremarkable way."

Acquired Distinctiveness: Because the evidence showed that stripe trade dress is a commonly-used form of ornamentation, Ralph's faced a "nearly insurmountable hurdle" to prove acquired distinctiveness. Its evidence fell far short.

Ralph's claimed 20 years of sales and $100 million in revenues under the proposed mark, and expenditures of $2 million in advertising, but the evidence was neither segregated by product or service nor placed in context vis-a-vis its competitors. There was no "look-for" advertising, no "direct attempt to educate consumers that the stripes trade dress indicates a unique source for the relevant goods and services," and no evidence as to the effectiveness or success of its alleged efforts to create the required unique association.

But even if Applicant had made concerted efforts to educate consumers to regard the stripe pattern as uniquely indicating Applicant’s goods and services, the plethora of third-party uses of blue & white or similar stripes in connection with the same goods and services presents a nearly insurmountable hurdle for any such effort to succeed because they show that such use has not been “substantially exclusive.” See, e.g., Levi Strauss, 742 F.2d at 1403; Ayoub, 2016 WL 4474509, at *13. We find that Applicant has not come anywhere close to proving its alternative claim that the proposed trade dress has acquired distinctiveness.

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TTABlogger comment: Judge Casagrande's opinions are always down-to-earth and easy reading, albeit this one is a bit long (66 pages).

TTABlog Quarterly Index: April - June 2026

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