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Antler Trade Dress Fails to Function as a Trademark for Ammunition, Says TTAB

The Board affirmed a refusal to register the design shown below as a trademark for ammunition, finding that it fails to function as a source indicator. Applicant Alliant fired a blank with its claim that the design is inherently distinctive, the Board concluding that the design is not so unique that it would automatically be perceived as a trademark. In re Alliant Techsystems Inc., Serial No. 78546549 (July 2, 2009) [not precedential].The Board applied the "time-tested" analysis of Seabrook Foods, Inc. v. Barwell Foods, Ltd., 196 USPQ 289 (CCPA 1977) in determining whether Alliant's trade dress is inherently distinctive. In essence, according to Prof. McCarthy, the question is whether the design "is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicia of origin -- a trademark...continue to full post

Full post as published by The TTABlog on July 09, 2009 (boomark / email).