The Board affirmed a refusal to register, on the Supplemental
Register, the product configuration mark shown below, for
"printed paper labels; paper identification tags; printed
paper labels; adhesive labels; paper die cut shapes; paper labels;
paper tags; placards of paper or cardboard; printed paper labels;
coupons," finding that "the changeable elements in
Applicant's proposed mark result in multiple marks that cannot
be protected in a single registration." In
re MPT, Inc., Serial No. 86316207 (August 9, 2017) [not
precedential] (Opinion by Judge Cynthia C. Lynch).
The supposed mark consists of "four rounded, convex corners
and the call-out indicator of a generally rectangular speech
bubble, with the call-out indicator located at the bottom of the
speech bubble and formed by an extended pointed portion connected
to the lower right corner by a concave line and connected to the
lower left corner by a sloped line. The broken lines in the drawing
are used to show the placement of the mark and are not part of the
mark." During prosecution, applicant explained that
"These unclaimed portions comprise portions of the straight
walls at the four sides of the label that would fix their
length."
A trademark application may seek to register only one mark, and
a phantom mark is more than one mark. Phantom marks encompass too
many possibilities to make effective searching possible, and thus
do not provide proper notice to others.
Here, significantly different shapes could be created by varying
the lengths and widths of the sides of this shape, demonstrating
the unacceptable phantom nature of the proposed mark. (See examples
below).
The Board also affirmed a requirement that the applicant submit a proper drawing and description of the proposed mark, because both encompass more than one mark.
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