TMEP 1202.17(b)(ii): Marks Displaying an Unusual Depiction of a Universal Symbol

October 2017 Edition of the TMEP

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1202.17(b)(ii)    Marks Displaying an Unusual Depiction of a Universal Symbol

If the mark contains a universal symbol, the examining attorney must determine whether the mark displays the symbol in the usual manner or otherwise features an accurate depiction of the symbol. This may be done by comparing the symbol in the mark with any accurate depictions of the symbol the examining attorney finds while researching the symbol.

Generally, a universal symbol in a mark should be considered registrable matter if it is highly stylized, if it incorporates elements that are not usually in the symbol, or if it is integrated with other matter in the mark, and, as a result, a distinctive commercial impression separate and apart from the symbol’s usual significance is created or a source-indicating unitary whole is formed. Cf. In re LRC Prods. Ltd., 223 USPQ 1250, 1252 (TTAB 1984) (noting that "where designs or representations were more realistic and where the design left no doubt about the depiction of a central feature or characteristic of the goods or services," the Board has found that such designs and representations are merely descriptive); TMEP §1213.03(c) ("No disclaimer of highly stylized pictorial representations of descriptive matter should be required[,] because the design element creates a distinct commercial impression."); TMEP §1213.05(f) ("The visual presentation of a mark may be such that the words and/or designs form a unitary whole. In such a case, disclaimer of individual nondistinctive elements is unnecessary."); TMEP §1213.05(g)(iv) ("If literal and design elements in a mark are so merged together that they cannot be divided or regarded as separable elements, these elements may be considered unitary."). However, displaying an accurately depicted universal symbol as a replacement for a letter in a mark’s literal element normally will not change the symbol’s usual impression (or create a unitary whole), nor will minor alterations to the symbol, such as slight stylizations or nondistinctive changes to color scheme or proportions. Cf. TMEP §§1213.03(c), 1213.05(g).