[author: Savannah Merceus]

Last summer, streetwear brand Off-White filed an application with the United States Patent and Trademark Office (USPTO) to register the mark “PRODUCT BAG.” With other Off-White goods bearing logos such as “MAKE UP,” “GOODS,” and “SCULPTURE,” those familiar with the brand know that founder Virgil Abloh is no stranger to the use of quotation marks. Despite their prevalence in the brand, this seems to be the first time the fashion house has filed an application for a quotation-specific mark. It begs the question: Can someone register a mark containing quotation marks? What about other punctuation?

Generally, a trademark may consist of any “word, name, symbol, or device, or any combination thereof.” 15 U.S.C. §1127. While punctuation can be included as an element of a mark, it generally creates no additional indicating function. Section 807.14(c) of The Trademark Manual of Examining Procedure states, “Punctuation, such as quotation marks, hyphens, periods, commas, and exclamation marks, generally does not significantly alter the commercial impression of the mark.” In other words, the addition or subtraction of punctuation does not seriously change how the mark resonates with consumers.

This, however, does not mean that punctuation has no effect on a mark’s distinctiveness. For example, the Trademark Trial and Appeal Board found that adding a question mark to the mark GOT STRAPS materially altered the mark’s commercial impression—an integral part of a mark’s distinctiveness. See In re Guitar Straps Online LLC, 103 U.S.P.Q.2d 1745, 1748 (T.T.A.B. 2012). And of course, adding a period for a “.com” extension would change a mark’s connotation so that it refers to a web address.

Ultimately, it is unlikely that Off-White’s use of quotation marks in the “PRODUCT BAG” mark will be the deciding factor in whether the application proceeds to registration. The USPTO did initially refuse Off-White’s application but did so for reasons unrelated to the mark’s punctuation. Nevertheless, for a brand that has made quotations its signature, a positive outcome for the application stands to afford the fashion label greater protection for its designer goods while providing practitioners with additional guidance on the role of punctuation in trademarks.