Intellectual Property Law

Merry Christmas!

By Michael Atkins

Merry Christmas!

Of course, I’m referring to MERRY CHRISTMAS, Serial No. 78161138, the alleged trademark used in International Class 32 in connection with “non-alcoholic juice beverage, namely fruit juices.”  This application was abandoned in January 2005 after the PTO issued a final refusal because the alleged mark is merely ornamental and does not function as a trademark.

The examining attorney properly found the proposed mark “does not function as a trademark to indicate the source of the identified goods.” He added: “The slogan is merely a sentiment expressed by one to another. Therefore, the slogan is merely indicative of the sentiments of the participants and not used as a source indicator.”

That’s not to say MERRY CHRISTMAS can’t ever serve as a trademark. See, for example, Reg. No. 3254339 in International Class 3 for “Non-medicated skin care products namely scrubs; scented heat-to-toe body wash” and Reg. No. 3561707 in International Class 34 for “Cigar and cigarette boxes; Cigar and cigarette boxes not of precious metal; Cigar bands; Cigar boxes; Cigar boxes not of precious metal; Cigar tubes; Cigars.”

The difference in the MERRY CHRISTMAS marks is simple: the one that only serves as a sentiment and not a source indicator isn’t registrable; the ones that serve as an indicator of source function as a trademark and, therefore, are registrable like any other valid mark.

Full post as published by Seattle Trademark Lawyer on December 24, 2009 (boomark / email).