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Precedential No. 8: Applicant Fails to Prove Acquired Distinctiveness for Sunglass Frame Product Design

By John L. Welch

The Board affirmed a refusal to register the product configuration mark shown below for "spectacles, sunglasses," finding that Applicant had failed to prove acquired distinctiveness. The alleged mark comprised three "fingers" located near the earpiece hinge and resembles an "asymmetrical fork." In re ic! berlin brillen GmbH, Serial No. 79005455 (February 14, 2008) [precedential].Applicant sought registration under Section 2(f), apparently recognizing that a product shape cannot be inherently distinctive. It pointed to five years of use, sales of more than 40,000 units, and marketing expenditures of $115,000 in 2006 alone. Applicant submitted photographs of celebrities wearing its eyewear, as well as ten "uniformly worded customer declarations from opticians" claiming that the design serves as a source indicator and that customers as for the eyewear by the earpiece design...continue to full post

Full post as published by The TTABlog on February 22, 2008 (boomark / email).