Precedential No. 5: Blue-and-White Stripes Trade Dress Lacks Inherent and Acquired Distinctiveness, Says TTAB

The Board upheld a refusal to register a design comprising parallel blue and white stripes (shown below) for frozen confections and confections, fruit drinks, alcoholic beverages, franchising services, and restaurant services (in six classes), finding that the proposed mark is not inherently distinctive and lacks acquired distinctiveness. The Board observed that Applicant Ralph's "blue & white stripes are simply a refinement or variation of the common practice of using alternating colored stripes." As to acquired distinctiveness, "the plethora of third-party uses of blue & white or similar stripes in connection with the same goods and services presents a nearly insurmountable hurdle for any such effort to succeed because they show that such use has not been ‘substantially exclusive.’” In short, “Applicant has not come anywhere close to proving its alternative claim that the proposed trade dress has acquired distinctiveness." In re Ralph’s Famous Italian Ices Franchise Corp., 2026 U.S.P.Q.2d 553 (TTAB 2026) [precedential] (Opinion by Judge Thomas L. Casagrande).

"The mark consists of a repeating pattern of alternating blue and white vertical stripes, which are of equal width and proportion. The repeating pattern appears on a portion of the surface of the goods, on a portion of the packaging for the goods, on a portion of the building facades in which the services are offered, and on displays, marketing and advertising materials associated with the services."

Inherent Distinctiveness: Product packaging trade dress may qualify as inherently distinctive, depending on the evidence. See, e.g., Two Pesos, 505 U.S. at 773-74 (restaurant décor); In re Chippendales USA, Inc., 622 F.3d 1346, 1351 (Fed. Cir. 2010) (design of a costume worn by a service provider, i.e., “trade dress” constituting the “packaging” of the service). Whether such trade dress is inherently distinctive requires an assessment of:

1. whether it was a ‘common’ basic shape or design, 
2. whether it was [not] unique or unusual in the particular field, 
3. whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods [or services] viewed by the public as a dress or ornamentation for the goods [or services], or 
4. whether it was capable of creating a commercial impression distinct from the accompanying words. 

Chippendales, 622 F.3d at 1351 (quoting Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (CCPA 1977)). If the answer to any of the first three Seabrook inquiries is “yes,” the design is not inherently distinctive.

In In re Fantasia Distrib., Inc., No. 86185623, 2016 WL 5866950 (TTAB 2016), the Board adapted and applied this test to a design constituting a repeating ornamental pattern on goods, as follows: 

• the nature of Applicant’s goods and whether there is an industry practice of ornamenting such goods;
• the nature of the pattern, including whether any element of the pattern might be perceived as source indicating if it were standing alone; 
• how common the pattern is, whether it is composed of common or unusual repeating shapes, whether such shapes repeat in a common or unusual manner, and whether the overall pattern is similar to, or a mere refinement or variation of, a common and well-known form of ornamentation;
• the manner in which the repeating pattern appears on the product, including the size and location of the pattern on the product and how much of the product is covered by the pattern; and&
• whether the pattern creates a distinct commercial impression apart from any accompanying wording and design elements.

As to each class of goods and services, the Board considered the substantial third-party evidence submitted by Examining Attorney Hai-Ly Lam. With respect to the goods in classes 29 and 30 and the restaurant services in class 43, the evidence "overwhelmingly " showed that Ralph's blue-and-white stripes "are simply a refinement or variation of the common practice of using alternating colored stripes." As to the beverages in classes 32 and 33 and the franchising services in class 35, the evidence was not as voluminous but nonetheless showed that "stripes generally are a rudimentary form of ornamentation and Applicant uses them in an unremarkable way."

Acquired Distinctiveness: Because the evidence showed that stripe trade dress is a commonly-used form of ornamentation, Ralph's faced a "nearly insurmountable hurdle" to prove acquired distinctiveness. Its evidence fell far short.

Ralph's claimed 20 years of sales and $100 million in revenues under the proposed mark, and expenditures of $2 million in advertising, but the evidence was neither segregated by product or service nor placed in context vis-a-vis its competitors. There was no "look-for" advertising, no "direct attempt to educate consumers that the stripes trade dress indicates a unique source for the relevant goods and services," and no evidence as to the effectiveness or success of its alleged efforts to create the required unique association.

But even if Applicant had made concerted efforts to educate consumers to regard the stripe pattern as uniquely indicating Applicant’s goods and services, the plethora of third-party uses of blue & white or similar stripes in connection with the same goods and services presents a nearly insurmountable hurdle for any such effort to succeed because they show that such use has not been “substantially exclusive.” See, e.g., Levi Strauss, 742 F.2d at 1403; Ayoub, 2016 WL 4474509, at *13. We find that Applicant has not come anywhere close to proving its alternative claim that the proposed trade dress has acquired distinctiveness.

Read comments and post your comment here.

TTABlogger comment: Judge Casagrande's opinions are always down-to-earth and easy reading, albeit this one is a bit long (66 pages).

Text Copyright John L. Welch 2026.