23 March 2015

Achieving a fanciful distinction

23 March,2015

Every seller, perhaps, fancies being distinctive and successful and the applicant in re Frankish Enterprises Ltd (decided in 27-2-2015) certainly got the combination right. The TTAB reversed the refusal to register a mark consisting of a truck cab body in the design of a fanciful, prehistoric animal with the word JURASSIC ATTACK. The registration was sought for entertainment services in nature of monster truck exhibition service. An internet search had revealed over 100 monster trucks. But, the mark in question achieved the distinction of being unique and not comparable with any other.

Thus, it could function as service mark and was readily identifiable with the truck exhibition services of the applicant. The truck’s body was suggestive of a prehistoric animal without looking like a particular animal. Interestingly, IP protection was not sought for the design, as a toy or model truck, or any other product.  The TTAB reiterated that while trade dress in the nature of product design can never be inherently distinctive, product packaging trade dress and trade dress for services can be inherently distinctive.

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