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TTAB Reverses Oranamental Refusal of Embossed Design on Tire; PTO Fails to Make Prima Facie Case

By John L. Welch

The Board reversed an "ornamental" refusal to register the design mark shown below for vehicle tires, finding that the PTO Examining Attorney had failed to make a prima facie case that the mark is merely ornamental and does not function as a trademark (Sections 1, 2, and 45 of the Trademark Act). In re Tire Mart, Inc., Serial No. 78292388 (January 22, 2008) [not precedential].Applicant's specimens (see below) show the lightning bolt design molded into the outside shoulder of the tire and extending onto the sidewall. The groups of three lighting bolts is repeated some 15 to 20 times around the tire. The Board pointed out that the issue of functionality (Section 2(e)(5)) was not raised by the PTO.The fact that a mark may be "visually pleasing" or ornamental odes not mean it cannot be registered...continue to full post

Full post as published by The TTABlog on January 28, 2008 (boomark / email).