TMEP 1202.19: Repeating-Pattern Marks

October 2017 Edition of the TMEP

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1202.19    Repeating-Pattern Marks

A repeating-pattern mark is a mark composed of a single repeated element or a repeated combination of designs, numbers, letters, or other characters, forming a pattern that is displayed on the surface of goods, on product packaging, or on materials associated with the advertising or provision of services. The pattern may appear over the entire surface or on just a portion of the relevant item.

Repeating-pattern marks are often applied to clothing and fashion accessories, but they also appear on other goods, including furniture, bedding, dinnerware, luggage, paper products, and cleaning implements. In addition, these marks frequently appear on packaging for a variety of goods and have been registered for use in connection with services such as retail stores and travel agencies. For examples of repeating-pattern marks, see TMEP §1202.19(k).

In a repeating-pattern mark, the repetition of the mark’s elements is a feature of the mark, which must be appropriately specified in the application. See TMEP §§1202.19(a), (b). The fact that the specimen shows the mark depicted in the drawing being used in a repetitive fashion on the relevant items is not, by itself, a sufficient basis for treating the mark as a repeating-pattern mark. That is, despite what is shown in the specimen, the applicant might not be seeking a registration in which repetition is a feature of the mark. Accordingly, there also must be some indication in the mark description or on the drawing to indicate that the mark consists of a repeating pattern.

If the nature of the mark is ambiguous, the examining attorney must seek clarification from the applicant through a Trademark Rule 2.61(b) requirement for information, or by telephone or e-mail communication, as appropriate. See 37 C.F.R. §2.61(b); TMEP §814. Any clarification obtained through informal communication should be recorded in a Note to the File or in a subsequent Office action or examiner’s amendment. See TMEP §709.05.

A repeating pattern that is unique when used in connection with the relevant goods or services may be inherently distinctive. See TMEP §1202.19(e)(i)(A). However, because of the ornamental and typically nondistinctive nature of repeating patterns, consumers often do not perceive these patterns as source indicators, in which case they may not be registered on the Principal Register without proof of acquired distinctiveness. See TMEP §§1202.19(e)–(e)(iii).