Tuesday, November 10, 2009

Test Your TTAB Judge-Ability: Is This Stylization of "JUMBOZ" Inherently Distinctive?

There was no debate that the word "Jumboz" is at least merely descriptive of "processed sunflower seeds." In fact, two years ago the TTAB affirmed a genericness refusal of JUMBOZ for the same goods. [TTABlogged here]. But what about the stylized version shown below? Is it registrable on the Principal Register (with a disclaimer of JUMBOZ?) In other words, is the design inherently distinctive? You be the judge. In re Dakota Natural Foods, Inc., Serial No. 77356614 (October 23, 2009) [not precedential].

The test to be applied is set forth in Seabrook Foods, Inc. v. Bar-Well Foods Limited, 568 F.2d 1342, 196 USPQ 289, 291 (CCPA 1977):

In determining whether a design is arbitrary or distinctive this court has looked to whether it was a “common” basic shape or design, whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. (footnotes omitted).

The Board reviewed a number of prior decisions in making its determination. It noted that the two marks shown immediately below were found to have inherently distinctive stylization that made them eligible for the Principal Register despite the descriptiveness of the word portions:

But it also observed that the following marks were found not to be sufficiently distinctive to merit a Principal Registration:

So what do you think, Judge Anonymous?

TTABlog quiz: What college athletic program uses the nickname "Jumbos"? Answer here.

Text Copyright John L. Welch 2009.


At 11:05 AM, Anonymous Anonymous said...

One vote for not distinctive. A tilted Z just isn't enough.


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