In a precedential choice, the Hallmark Trial and Appeal Board (” Board”) enabled registration of the following style mark for “Gambling establishments,” in International Class 41, and “Hotel, dining establishment, and bar services,” in International Class 43 on behalf of the Seminole People of Florida (” Candidate”):
In re Seminole People of Fla., 2023 TTAB LEXIS 184 (TTAB Might 25, 2023). The style mark was referred to as “including a three-dimensional structure in the shape of a guitar.”
Eventually, the Examining Lawyer declined to sign up the style mark “on the ground that it is nondistinctive trade gown, thinking that ‘[b] ecause structures been available in a huge range of sizes and shapes, and are utilized to offer practically all kinds of items and services, customers do not naturally view the outside of a whole structure as an instant, fundamental source sign for the services supplied inside the structure.'” Nevertheless, the Examining Lawyer enabled the style mark to sign up on gotten diversity premises. Candidate appealed, arguing that the style mark is naturally distinct.
” The crucial questions in identifying whether a classification works as a mark is how the classification would be viewed by the pertinent public … A mark is naturally distinct if its intrinsic nature serves to determine a specific source.” The Board supplied prolonged summations of previous Supreme Court, Federal Circuit, and Board viewpoints handling trade gown, consisting of 2 Pesos, Inc. v. Taco Cabana, Inc., Wal-Mart Stores v. Samara Bros., In re Chippendales U.S.A., Inc., and In re Frankish Enters. Ltd. Based upon its reading of these viewpoints, the Board identified that “it is suitable for us to think about whether a customer would instantly count on Candidate’s Guitar Style mark to distinguish Candidate’s Providers from the services of others who use gambling establishments or hotel, dining establishment, and bar services, in addition to to think about the whole trade gown of Candidate’s Guitar Style mark as revealed and explained above.”
Using this test, the Board concentrated on “whether the trade gown is a ‘typical’ standard shape or style; whether it is distinct or uncommon in a specific field; or whether it is a simple improvement of a commonly-adopted and popular kind of decoration for a specific class of items seen by the public as a gown or decoration for the items.” The Board discovered that the guitar style was “distinct” for a structure, and, for that reason, it “is of a type that customers would instantly count on to distinguish Candidate’s Providers from gambling establishments or hotel, dining establishment, and bar services provided by others, which it for that reason makes up naturally distinct trade gown.” The mark for that reason continued to registration without a claim of gotten diversity.