Monday, January 31, 2005

TTAB Says "ALL AMERICAN WOMAN" Not Merely Ornamental

In one of the shorter opinions of this short year, the Board reversed an ornamentality refusal to register ALL AMERICAN WOMAN for wearing apparel (WOMAN disclaimed). In re Big American Man, Serial No. 76200528 (January 18, 2005) [not citable].

Big American Man's specimen of use was a t-shirt on which the mark appeared "in a very small manner on the upper left corner of the front of the shirt (i.e., above the breast pocket)." The Examining Attorney cited Sections 1, 2, and 45 of the Trademark Act in refusing registration on the ground that "the specimen shows the proposed mark used as mere ornamentation."

Applicant's specimen of use

The Board totally disagreed:
" . . . we fail to understand the Examining Attorney's argument that consumers would perceive applicant's mark ALL AMERICAN WOMAN, as used on applicant's specimen, as anything other than a trademark. Applicant's mark is not presented in an extremely large fashion such that it might be perceived as a statement about the wearer, and thus serve as mere ornamentation. Likewise, applicant's mark is not repeated over and over on the specimen such that it might appear as mere ornamentation."

To this writer, the term "All American Woman" might well be perceived as a boastful "statement about the wearer," even if it appears only in small type. Perhaps this clothing line is aimed at shy women who prefer to boast discretely!

Does this decision point the way for other clothing applicants to obtain registration of their arguably ornamental marks: place them discretely on the clothing specimens, preferably in "a very small manner over the breast pocket?"

All American Woman?


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