"SURVIVAL + Greek Cross Design" Fails to Function as a Trademark for First Aid Kits, Says TTAB

The Board upheld a refusal to register the proposed mark shown below for "first aid kits" [SURVIVAL disclaimed] on the ground that the supposed mark "would be perceived as merely informational matter and thus fails to function as a trademark" for the identified goods. The Board found that each of the elements of the mark - the white Greek cross on a green background, the word SURVIVAL, and the red rectangle - are non-distinctive both alone and in combination. In re Tyrrells Administration Pty Ltd, Serial No. 97002256 (November 15, 2024) [not precedential] (Opinion by Judge Robert Lavache).

“The critical question in determining whether [a proposed mark] functions as a trademark is the commercial impression it makes on the relevant public, i.e., whether the term sought to be registered would be perceived as a mark identifying the source of the goods ....” Peace Love World Live, 2018 TTAB LEXIS 220, at *7; see also GO & Assocs., 90 F.4th at 1359 (noting that the relevant analysis focuses on “how the mark is used in the marketplace and how it is perceived by consumers").

The Greek Cross: The Board agreed with Examining Attorney Anna Oakes that the white Greek cross on a green background "is a universal symbol for first aid and is commonly used by those in the first aid field." Applicant Tyrells argued that there are many symbols connoting "first aid," but that didn't help. The evidence showed that the white Greek cross on a green background is recognized as one of them.

SURVIVAL: The Board found that "third parties in the field of first aid kits, some of whom are presumably Applicant’s competitors, commonly use the term SURVIVAL to refer to first aid kits that contain materials and components for supporting the continuation of life, i.e., for survival." The Board concluded that "potential purchasers of first aid kits will recognize the term SURVIVAL as identifying a category of first aid kits or a key aspect of them." In sum, SURVIVAL is generic for first aid kits.

Red rectangle: Applicant claimed the red rectangle (but not the "white and blue outlining") as part of its proposed mark. The Board found the rectangle to be nondistinctive:

[T]here is nothing striking, unique, or distinctive about the color or shape of the rectangle that contains the word SURVIVAL, or the manner in which that word is placed or stylized within the rectangle. Further, we find that the color red actually renders the rectangle less distinctive, as the record contains numerous examples showing that red is commonly used on first aid kits or in connection with first aid generally.

The Combination: The Board again agreed with the Examining Attorney that "there is nothing in the combination such that the mark, as a whole, serves indicate the source of Applicant’s first aid kits and distinguish them from those of others."

Finally, Tyrells pointed to the two marks below, registered for first aid kits, as justification for registration of its mark. The Board was unmoved.

While both of these registrations cover first aid kits, their existence on the register does not justify registration of Applicant’s proposed mark where the evidence of record shows that the relevant public would perceive the Greek cross, and the mark as a whole, as something other than an indicator of source. We reiterate here, as many prior Board decisions have, that “[e]ach application for registration must be considered on its own merits.”

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Text Copyright John L. Welch 2024.