1301.02(c) Three-Dimensional Service Marks
The three-dimensional configuration of a building is registrable as a service mark only if it is used in such a way that it is or could be perceived as a mark. Evidence of use might include menus or letterhead that show promotion of the building’s design, or configuration, as a mark. See In re Lean-To Barbecue, Inc., 172 USPQ 151 (TTAB 1971); In re Master Kleens of Am., Inc., 171 USPQ 438 (TTAB 1971); In re Griffs of Am., Inc., 157 USPQ 592 (TTAB 1968). Cf. Fotomat Corp. v. Cochran, 437 F. Supp. 1231, 194 USPQ 128 (D. Kan. 1977); Fotomat Corp. v. Photo Drive-Thru, Inc., 425 F. Supp. 693, 193 USPQ 342 (D.N.J. 1977).
A three-dimensional costume design may function as a mark for entertainment services. See In re Red Robin Enters., 222 USPQ 911 (TTAB 1984).
Generally, a photograph is a proper specimen of use for a three-dimensional mark. However, photographs of a building are not sufficient to show use of the building design as a mark for services performed in the building if they only show the building in which the services are performed. The specimen must show that the proposed mark is used in a way that would be perceived as a mark.
When examining a three-dimensional mark, the examining attorney must determine whether the proposed mark is inherently distinctive. See TMEP §1202.02(b)(ii).