TMEP 1202.05(g): Special Considerations for Service Mark Applications

October 2017 Edition of the TMEP

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1202.05(g)    Special Considerations for Service Mark Applications

Although the applicant in In re Thrifty, Inc., 274 F.3d 1349, 61 USPQ2d 1121 (Fed. Cir. 2001), argued that it applied for the color blue per se as a service mark, the Court determined that the drawing controlled, such that the application was for the color blue applied to a building. Although the Court did not reach the issue of color per se as a service mark, the Court acknowledged the special evidentiary problem associated with showing acquired distinctiveness in this context. Id. at 1353, 61 USPQ2d at 1124 ("[E]vidence submitted to demonstrate acquired distinctiveness of a color may show consumer recognition with respect to certain objects (e.g., blue vehicle rental centers), but not for other objects (e.g., blue rental cars)."). Accordingly, any claim to color per se must be specific as to use and include evidence of acquired distinctiveness for each claimed use.