TMEP 1202.03(d): Evidence of Distinctiveness

October 2017 Edition of the TMEP

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1202.03(d)    Evidence of Distinctiveness

As noted above, even if a proposed mark is not inherently distinctive, it may nevertheless be registered on the Principal Register under §2(f), 15 U.S.C. §1052(f), if it becomes distinctive of the applicant’s goods in commerce. See TMEP §§1212–1212.10 regarding acquired distinctiveness.

Generally, evidence of five years’ use alone is not sufficient to show acquired distinctiveness of a mark that is mere ornamentation. Concrete evidence that the proposed mark is perceived as a mark for the relevant goods or services is required to establish distinctiveness. See In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417 (Fed. Cir. 1985).