Wednesday, December 31, 2008

Is Stylization of "GRUNGE" Mark Distinctive? You Be the TTAB Judge!

Is the stylization of the word GRUNGE in the mark shown below sufficiently distinctive in character to support a Principal Registration for various clothing items [GRUNGE disclaimed]? The Board recognized that this determination is a subjective one, so what do you think? In re Grapevine Intellectual Properties, LLC, Serial No. 77141442 (December 18, 2008) [not precedential].

During proscution, the Examining Attorney provided a dictionary definition of the term GRUNGE as "a style of dress, popularized by fans of grunge music, typified by second-hand clothes worn in layers, heavy footwear, unkempt hair, and an overall scruffy appearance."

Applicant did not dispute the descriptiveness of GRUNGE, but contended that "[e]ach letter in the word 'grunge' is displayed in its own highly stylized typeface, characterized by erratic edges and inconsistent sizes and thicknesses, creating a striking commercial impression separate and apart from the word portion of the mark." The Examining Attorney disagreed.

The Board observed that "in order for a term otherwise unregistrable to be capable of distinguishing an applicant's goods, the presentation of the term must be sufficiently distinctive so as to create a commercial impression separate and apart from the unregistrable components whereby it is possible to disclaim those unregistrable components and still have a mark which is registrable as a whole."

The determination of whether the stylization of an otherwise unregistrable designation is sufficiently distinctive in character to “rescue” the designation as a whole is a subjective one.

The Board compared the GRUNGE mark to the four marks shown below, each of which was previously found to have an inherently distinctive stylization:

So how did it come out? Read the decision.

Text Copyright John L. Welch 2008.


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