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TTAB Overturns PTO Refusal, Finds "LAY'S GET YOUR SMILE ON" to be Unitary Mark

Finding that Frito-Lay's mark LAY'S GET YOUR SMILE ON!, as it appears on the specimen of use (shown immediately below) is a unitary mark, the Board reversed the PTO's refusal to register. The Examining Attorney had maintained that the applied-for mark actually consists of two marks, LAY'S and GET YOUR SMILE ON! In re Frito-Lay North America, Inc., Serial No. 78555200 (May 2, 2008) [not precedential].In the Final Refusal, the Examining Attorney made the strange argument that the fact that Frito-Lay had registered the mark in the design form shown below (with the same specimen of use) was evidence that "applicant recognizes this application contains two separate marks.""The question in this case is whether the applied-for mark is a registrable unitary composite mark engendering a unique and distinct commercial impression...continue to full post

Full post as published by The TTABlog on May 09, 2008 (boomark / email).