TMEP 1202.19(e)(i): Inherent Distinctiveness Determination
October 2017 Edition of the TMEP
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1202.19(e)(i) Inherent Distinctiveness Determination
Because repeating patterns frequently serve an ornamental function in various contexts, they are often not inherently distinctive when applied to goods, packaging, or materials associated with services. Instead, consumers may perceive these patterns as nothing more than ornamentation or background matter serving no source-indicating function. Thus, determining whether a repeating-pattern mark is inherently distinctive and functions as a source indicator involves considering the impression created when the mark is used in connection with the identified goods or services. See In re Aerospace Optics, Inc., 78 USPQ2d 1861, 1862 (TTAB 2006) ("A critical element in determining whether matter sought to be registered is a trademark is the impression the matter makes on the relevant public. Thus... the critical inquiry is whether the asserted mark would be perceived as a source indicator.... To be a mark, the term must be used in a manner calculated to project to purchasers or potential purchasers a single source or origin for the goods.... We determine whether this has been achieved by examining the specimens of use along with any other relevant material submitted by applicant during prosecution of the application.").
Relevant considerations when determining inherent distinctiveness include those discussed below.