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The Trademark Trial and Appeal Board on June 10 affirmed the refusal to register “No More RINOs!,” finding that the mark is perceived as a political slogan, and thus fails to function as a trademark (In re Hulting, T.T.A.B., No. 77666826, 6/10/13).
The Trademark Trial and Appeal Board affirmed the examining attorney's refusal to register the mark and said that registration of a mark is not determined by the applicant's intent, ownership name, or use of a tagline. In this case, the board said consumers were unlikely to perceive the slogan as a source identifier.
The board rejected the applicant's arguments that an ownership name change to include the slogan or the addition of a tagline that conveys the source information has a bearing on whether the mark can be registered.
In 2009, Thomas J. Hulting d/b/a/ No More RINOs! Enterprises filed an application to register the mark No More RINOs! for use on clothing, posters, and other goods.
No More RINOs! is a political slogan that stands for “No More Republicans in Name Only.” The examining attorney provided evidence explaining that the phrase is a “well-recognized political call to action by a conservative wing of the Republican party,” and is frequently seen on T-shirts and other retail items to show support.
The examining attorney refused Hulting's application under Sections 1, 2, and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1052, 1127, on grounds that the “designation is merely ornamental and informational matter and does not function as a mark for the goods” applied for.
Hulting appealed the refusal to the TTAB.
Quoting In re Eagle Crest Inc., 96 U.S.P.Q.2d 1227 (T.T.A.B. 2012), the board said, “The critical inquiry in determining whether a designation functions as a mark is how the designation would be perceived by the relevant public.”
Administrative Judge Angela Lykos said this determination depends on looking at how the mark is actually used in the marketplace. A phrase that is considered a slogan, or a phrase that is ordinarily used in business or a particular trade or industry is not registrable because it is considered to be merely informational. Therefore, it will be less likely to be seen as a source identifier and recognized by the public as a trademark.
The board looked at the goods Hulting included in his application, and determined that the record shows that consumers expect to see the phrase No More RINOs! on a variety of goods. The board concluded:
[C]onsumers purchasing applicant' goods will perceive applicant's proposed mark as a political slogan commonly used by multiple individuals and entities rather than a sole source of products or services.
The board also looked at the “placement, size, dominance” of the mark on Hulting's good and found that its prominence on the goods indicated that the mark is informational or ornamental.
While it rejected the idea that there is a bright line rule about what size indicates a mark is informational and what size indicates that a mark is trademark registrable, the prominence of the slogan on Hulting's goods indicated that his intent was to convey information rather than signify a brand.
Hulting argued that the refusal should be overruled because of a change in ownership. Hulting had changed the name of the “Thomas J. Hulting d/b/a Statesman Enterprises” to “Thomas J. Hulting d/b/a/ No More RINOs! Enterprises.”
However, the board agreed with the examining attorney and ruled that a change in ownership does not enter considerations about trademark registration, since the test for a mark is not if the public knows the owner, but if it signifies a single source.
Hulting also argued that adding the tagline “By the Statesman Enterprises” to his goods indicates the source. The board also rejected this argument, stating that “the tagline is not part of the mark applied for, nor can it be added to the mark.” Therefore, the tagline was not considered a part of the board's determination of whether the mark could be registered.
Finally, the board emphasized that Hulting's intent that the slogan act as a mark is not enough for the mark to be a trademark. To receive trademark protection, the mark must indicate the source, placing it on a T-shirt or sticker is not enough, the board said.
Administrative Judges David E. Bucher and Susan J. Hightower joined the board's opinion.
Hulting was represented by Evan T. Hulting, Owings Mills, Md. The Patent and Trademark Office was represented by Examining Attorney Tricia Sonneborn.
Text is available at http://pub.bna.com/ptcj/TTABHulting13June10.pdf.
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