Thursday, July 09, 2009

Antler Trade Dress Fails to Function as a Trademark for Ammunition, Says TTAB

The Board affirmed a refusal to register the design shown below as a trademark for ammunition, finding that it fails to function as a source indicator. Applicant Alliant fired a blank with its claim that the design is inherently distinctive, the Board concluding that the design is not so unique that it would automatically be perceived as a trademark. In re Alliant Techsystems Inc., Serial No. 78546549 (July 2, 2009) [not precedential].

The Board applied the "time-tested" analysis of Seabrook Foods, Inc. v. Barwell Foods, Ltd., 196 USPQ 289 (CCPA 1977) in determining whether Alliant's trade dress is inherently distinctive. In essence, according to Prof. McCarthy, the question is whether the design "is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicia of origin -- a trademark."

Alliant urged that the design "creates a separate commercial impression upon the buyer as it emerges out of a background and hits the buyer in the eye in such a way that it is easily recognizable by consumers as a source indicator." According to Alliant, its design is "suggestive of a high-technology, high-energy molecular reaction through the use of vibrant colors (red, orange and yellow) complimented (sic) by linear, dotted, and swirling patterns and framed by uniquely positioned deer antlers."

Examining Attorney Dayna J. Browne relied on product packaging of several competitors in the ammunition industry, including some showing "a variety of pictorial representations of deer, ranging from full body deer to deer silhouettes to a deer head with antlers. No matter the type of representation, the deer is always displayed with antlers." Other packaging showed the use of colors like red, yellow, and orange, "presumably to suggest an explosion caused by the ammunition."

The Board noted Alliant's statement that the product "is made specifically for deer hunting," and that the design is always used with Alliance's mark FUSION. While it conceded that the colors of Alliance's packaging are "very bright," the Board found that brightness alone is not sufficient "to transform the packaging into an inherently distinctive trademark for applicant's goods." It concluded that

... the combination of the swirling bright colors and the deer antlers, as described in the description of the mark, is not so unique or unexpected in the ammunition market to conclude that the design automatically is perceived as a trademark for applicant's ammunition.

Alliant's design, said the Board, "is essentially a mere decorative or ornamental background for the display of its mark FUSION." The fact that the design covers the entire packaging added to the Board's view "that buyers will not perceive the design as a source indicator."

And so the Board affirmed the refusal to register under Sections 1, 2, 3, and 45 of the Trademark Act.

TTABlog comment: Applicant Alliant has been using the mark for more than four years. Do you think that, a year from now, the five-year presumption may be enough to get this design registered under Section 2(f)? Or will more be required?

Note that the competitor packaging included deer with antlers. What if one showed a deer without antlers? Would that be inherently distinctive? Or does one not shoot antler-less deer?

Text Copyright John L. Welch 2009.


At 8:51 AM, Anonymous Anonymous said...

Although hunting regulations vary by state, it is generally permissible and quite common for hunters to shoot antler-less deer.

At 11:10 AM, Anonymous Anonymous said...

I think the TTAB will require more evidence that simply five years of use for this "mark" to be registered under 2(f).


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