TMEP 1209.03(f): Picture or Illustration

This is the October 2015 Edition of the TMEP

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1209.03(f)    Picture or Illustration

A visual representation that consists merely of an illustration of the goods, or of an article that is an important feature or characteristic of the goods or services, is merely descriptive under §2(e)(1) of the Trademark Act, just as a merely descriptive word would be. See In re Underwater Connections, Inc., 221 USPQ 95, 95 (TTAB 1983) (pictorial representation of a compressed air gas tank held merely descriptive of travel-tour services involving underwater diving); In re Eight Ball, Inc., 217 USPQ 1183, 1184 (TTAB 1983) (holding the mark comprising a pictorial representation of a cue stick and eight ball to be merely descriptive of applicant’s billiard parlor services); Thistle Class Ass’n v. Douglass & McLeod, Inc., 198 USPQ 504, 511-12 (TTAB 1978) (holding the pictorial representation of a thistle in the mark to be merely descriptive of the class of sailboats sold by applicant); see also In re Soc’y for Private & Commercial Earth Stations, 226 USPQ 436, 438 (TTAB 1985) (representation of earth station held merely descriptive of services of an association promoting the interests of members of the earth-station industry). But see In re LRC Prods., Ltd., 223 USPQ 1250 (TTAB 1984) (stylized hand design found not merely an illustration of the goods, i.e., gloves; thus not merely descriptive).

Similarly, when a mark is comprised of wording that is descriptive under §2(e)(1) and a design element that is a pictorial representation of the goods, or that reinforces the descriptive meaning of the wording, the entire mark is merely descriptive. See DuoProSS Meditech Corp. v. Inviro Med. Devices Ltd., 695 F3d 1247,1255, 103 USPQ2d 1753, 1758 (Fed. Cir. 2012) (finding that the combination of the term SNAP and the design of a broken exclamation point, viewed as a whole, would be perceived as depicting the snapping of a syringe plunger); In re Swatch Grp. Mgmt. Servs. AG, 110 USPQ2d 1751, 1762 (TTAB 2014) aff’d per curiam, 599 Fed. Appx. 959 (Fed. Cir. 2015) (finding that the design element depicting a tourbillon - a watch component - combined with the word TOURBILLON reinforced the singular impression conveyed by the mark as a whole as merely descriptive for “jewellery, horological and chronometric instruments”).