TMEP 1202.19(e)(i)(A): Common or Widely Used Pattern

October 2017 Edition of the TMEP

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1202.19(e)(i)(A)    Common or Widely Used Pattern

Evidence showing that the repeating pattern in the applied-for mark is similar to, or a mere refinement or variation of, a common pattern or a pattern that is widely used on the relevant items, may support the conclusion that the applied-for mark is not inherently distinctive. See Seabrook Foods, Inc. v. Bar-Well Foods, Ltd., 568 F.2d 1342, 1344, 196 USPQ 289, 291 (C.C.P.A. 1977).

On the other hand, if the nature of the repeating pattern is unique or unusual as applied to the relevant items, a finding of inherent distinctiveness may be appropriate. See Seabrook Foods, Inc., 568 F.2d at 1344, 196 USPQ at 291.

However, the mere fact that the applicant is the only user of the particular repeating pattern is not dispositive as to the inherent distinctiveness of a mark featuring that pattern. See In re E S Robbins Corp., 30 USPQ2d 1540, 1543 (TTAB 1992) ("If the concept of inherent distinctiveness was defined as meaning simply ‘one and only,’ then one could obtain a registration for a design which, while ‘unique’ in this sense, differed only slightly from the designs of other competing products and/or containers."). The examining attorney must weigh this factor together with any other relevant factors.