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Wave Goodbye to that Mark

By Tommas Balducci [March 19th, 2013] 

Lulugirlanddesign

In early January, Lululemon Athletica lost their appeal to the TTAB over the registration of the wave design shown below.

The TTAB, affirming the decision of the Examining Attorney, held that the wave design was merely an ornamental decoration and that the public would not perceive the applicant’s mark as an indicator of source. The TTAB stated that such a mark could only warrant trademark registration if the applicant could show the mark had inherent or acquired distinctiveness, or that the applicant has used or registered the design in a non-ornamental manner for other goods or services.

The Examining Attorney argued that the wave design is not distinctive, “due to its large size, consumers will not perceive it as a mark when used on the ‘hooded sweat shirts; jackets; coats’ for which applicant seeks registration.” The TTAB, in this precedential decision, declared that there, “is no per-se rule regarding registrability based on the size of a mark on clothing. Rather, in considering the commercial impression of marks of this nature, the size of the mark is one consideration along with others”. In this instance the TTAB found that the wave mark is “rather simple and looks like piping” and unlike other large scale designs discussed in the opinion, which were highly stylized and serve as source identifiers warranting protection.

Lulu LogoLululemon additionally argued that the wave design has acquired distinctiveness based on the company’s use of the mark on related products and services. The TTAB rejected this argument noting that the registration Lululemon attempted to tack the subject application to is a much more stylized wave tapering and varying in thickness throughout, and highlighted by contrasting circle. Though many consumers familiar with the brand may recognize the above sweatshirt as a Lululemon product, the TTAB found that the general public is likely to perceive the subject mark as merely ornamental, and refused to grant it registration.

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