Wednesday, June 08, 2005

TTAB Affirms Rejection of Materially Altered Drawing For "SPACE ADVENTURES" Design Mark

The Board affirmed a refusal to register the mark SPACE ADVENTURES & Design, shown immediately below, because that mark, submitted in an amended drawing, is a material alteration of the mark as originally filed. In re Space Adventures, Ltd. , Serial No. 76391912 (May 26, 2005) [not citable].

amended drawing

The original drawing depicted the mark as follows:

original drawing

The Examining Attorney contended that the amendment "materially alters the character of the mark" under Rule 2.72: the "proposed drawing eliminates all reference to the moon design that helped form the letter 'A' in the term 'SPACE' which the Examining Attorney describes as a 'non-generic, distinctive element.'" According to the Examining Attorney:

"The moon design reinforces the 'out of this world' commercial impression formed by the totality of the original mark. In addition, the moon design assisted in creating the predominant term, SPACE, and was reinforced as the visual center of the mark. It appeared in the center of the mark, in the predominant term of the mark and was framed by the high arching line of the letter 'A,' just like a picture frame highlights a picture."

Space Adventures, Ltd. argued that the horizontal line, not the moon design, forms the letter "A" and that the moon is merely background and is not an essential feature of the mark.

Having fun at zero gravity

The Board observed that the "touchstone for permissible amendments to the mark is that the mark retains the same overall commercial impression." After reviewing several prior decisions, the Board ruled that the mark in the amended drawing "would be a material alteration of the mark in the original drawing."

"We cannot say that the presence of the moon in the center of applicant's mark is a simple, background design, nor is it a generic, non-distinctive design element. Instead, it is prominently located in the center of the largest letter in applicant's design that is in the center of the mark. The moon design in the context of the words 'Space Adventures' is an eye-catching design that fills a space that would otherwise be void and reinforces the 'Space Adventures' theme of the mark."

Text ©John L. Welch 2005. All Rights Reserved.


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