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[author: Dan Kelly]
The U.S. Navy seems to have cleared all necessary hurdles to register the camouflage pattern to the right as a trademark for use in connection with uniforms and fabrics. Among the many hurdles that the Navy cleared, one is a refusal on the basis of “ornamentation,” or failure of the proposed design to function as a trademark. The question of whether a proposed mark is merely ornamental strikes at the heart of what a trademark is: does the proposed mark identify or distinguish a single source for the goods, or would consumers perceive it as “just a design”? The Navy argued against the ornamentation refusal unsuccessfully, but alternatively provided evidence that the mark had acquired distinctiveness–that through actual use, consumers have come to see the design as identifying a single source. It did so by submitting, among other evidence, twenty-five declarations from walk-in customers at the Navy Exchange, Naval Station Norfolk, all of which were identical to this one:
This seems like pretty thin evidence on which to establish acquired distinctiveness, but it worked. Relevant, too, is the fact that the goods description in the applications are limited to goods “. . . to be sold to authorized patrons of the military exchanges pursuant to Armed Services Exchange Regulations.” The market of relevant customers is therefore quite narrow.
These applications also recently came through a Trademark Trial and Appeal Board ruling that reversed refusals based upon functionality, and that opinion is here.
This case reminds me again of an issue that arises repeatedly in the trademark field. To the uninitiated, it is easy to look at this mark and think that it is a generic camouflage pattern, but to those in the know, that is, the “relevant market,” this pattern is highly distinctive. It is like birdwatching. A lay person can distinguish a relatively small number of different birds, but an ornithologist can distinguish perhaps thousands. For an example of this level of detail in the camouflage field, see here.
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