The Board affirmed two refusals to register the color pink for various tour and travel guide services, finding the drawing (shown immediately below) and the description of the mark unacceptable. The Board also found Applicant Herschend's proof of acquired distinctiveness inadequate. In re Herschend Adventure Holdings, LLC, Serial No. 87562135 (January 15, 2019) [not precedential] (Opinion by Judge Susan J. Hightower).
Description and Drawing: The application stated that the mark "consists of the color pink as applied to vehicles, brochures and websites (the mark consists of the color pink alone - the broken lines indicate the position of the mark and do not form part of the mark)."
TMEP 1202.05(d)(ii) states that an applicant seeking to register a single color service mark used on a variety of items not viewed simultaneously may submit a drawing displaying the mark as above: a solid-colored square with a dotted peripheral outline. "However, the examining attorney will generally require the applicant to submit a single amended drawing showing how the mark is used in connection with the services. The applicant must also submit a detailed description of the mark identifying the color and describing its placement."
Applicant's description of the mark was too vague and did not provide sufficient notice of the scope of applicant's claim. The Board noted that applicant had included an adequate description in a prior registration for the color pink: "The mark consists of the color pink as applied to the surface of a land vehicle." The drawing showed the placement of the mark:
The Board affirmed the requirement that applicant submit an amended drawing depicted the manner in which the mark is used in connection with the services, and an amended description indicating the specific placement of the color. [Note: applicant operates as "Pink Adventure Tours" in the Scottsdale Arizona area. Its website and brochures employ a pink background. See the specimens of use].
Acquired Distinctiveness: Of course, a color mark cannot be inherently distinctive. Applicant's president asserted use of the color pink since at least 1998, pointed to numerous media mentions, and provided data regarding number of customers, visits to its website, and advertising expenditures.
The Board found that applicant had established acquired distinctiveness in the color pink as applied to the exterior of vehicles for tour and travel guide services (as reflected in its existing registration, issued under Section 2(f)). There was no evidence, however, of acquired distinctiveness in the color pink as applied to brochures and websites.
The Board agreed with Examining Attorney Linda M. Estrada that "Applicant's extensive sales and promotion may demonstrate the commercial success of applicant's services, but not that relevant consumers view the matter as a mark for these services." Applicant's raw numbers alone were "insufficient to meet the heavy burden to establish that consumers recognize Applicant's use of the color pink on brochures and websites as a service mark."
The Board therefore affirmed the refusals to register.
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