1213.05 Unitary Marks
A mark or portion of a mark is considered “unitary” when it creates a commercial impression separate and apart from any unregistrable component. The test for unitariness inquires whether the elements of a mark are so integrated or merged together that they cannot be regarded as separable. See In re EBS Data Processing, 212 USPQ 964, 966 (TTAB 1981); In re Kraft, Inc., 218 USPQ 571, 573 (TTAB 1983). The inquiry focuses on “how the average purchaser would encounter the mark under normal marketing of such goods and also... what the reaction of the average purchaser would be to this display of the mark.” Dena Corp. v. Belvedere Int’l, Inc., 950 F.2d 1555, 1561, 21 USPQ2d 1047, 1052 (Fed. Cir. 1991) (quoting In re Magic Muffler Serv., Inc., 184 USPQ 125, 126 (TTAB 1974)). The Court of Appeals for the Federal Circuit has set forth the elements of a unitary mark:
A unitary mark has certain observable characteristics. Specifically, its elements are inseparable. In a unitary mark, these observable characteristics must combine to show that the mark has a distinct meaning of its own independent of the meaning of its constituent elements. In other words, a unitary mark must create a single and distinct commercial impression.
Dena Corp., 950 F.2d at 1561, 21 USPQ2d at 1052. If the matter that comprises the mark or relevant portion of the mark is unitary, no disclaimer of an element, whether descriptive, generic, or otherwise, is required.
The examining attorney must consider a number of factors in determining whether matter is part of a single or unitary mark: whether it is physically connected by lines or other design features; the relative location of the respective elements; and the meaning of the terminology as used on or in connection with the goods or services. Dena Corp., 950 F.2d at 1561, 21 USPQ2d at 1052.
The examining attorney should exercise discretion in determining whether a mark or portion of a mark is unitary, in which case a disclaimer of a nondistinctive component must not be required. Some considerations that may factor into an assessment of whether wording in a mark or portion of a mark is unitary are discussed in TMEP §§1213.05(a)–(b)(iii). Each consideration may not apply in every case, and a phrase may be found to be unitary or to constitute a slogan even where none apply if, for some other reason, the whole is something more than the sum of its parts. Furthermore, if a mark that includes a registrable unitary phrase or slogan also has other unregistrable components that are separable, the latter must be disclaimed.