Notice anything special about this pair of photographs featuring two different Holiday Inn front entrances? OK, putting aside that the one on the right — with green lighting — seems to have attracted, at least, a few cars, whereas the "blue light special" on the left appears to stage a full house with virtually every room light on, but ironically it reveals an empty parking lot.
Well, these aren’t ordinary photographs, they are trademark specimens of use; Six Continents Hotels, owner of the Holiday Inn brand, claims that they depict a pair of non-traditional trademarks, having filed them with the U.S. Trademark Office in April 2009, and asserting that use of the "lighting" marks commenced back in January 2008. So, we aren’t talking about the new H logo previously blogged about here or the old Holiday Inn word mark — those are standard and traditional single-letter logo and word trademarks. In case you’re wondering, no sign of any red or yellow lights for Holiday Inn, at least, on the Trademark Office database.
This is how Holiday Inn describes the claimed green lighting trademark:
"The mark consists of green lighting formed by four light fixtures placed in a symmetrical fashion near the entryway of the building. The lower set of two green lights are evenly placed on columns to the right and left of the entry way and direct the green lighting downward, while the upper set of two green lights are evenly placed on the building wall above the entry way and direct the green lighting upwards."
It took the Trademark Office only three weeks to issue registration refusals (green lighting refusal in pdf here).
Surprisingly, the Trademark Office did not issue an initial functional refusal as it typically does when trade dress and single color marks are claimed, which would put the burden on the applicant to establish non-functionality, but it nevertheless refused registration for the following reasons:
- Non-distinctive three-dimensional configuration
- Mere decoration or ornamentation
- Acquired distinctiveness not shown
- Customary in hotel industry to have lighting near entrances for illumination/security
Having said all that, the concept of protecting a lighting scheme as a trademark, even a colored one, even in the hospitality industry, is certainly do-able with early and close collaboration between trademark and marketing types.
They are not common, however, as evidenced by the Trademark Office’s inability to locate a prior registration to bar approval of the Holiday Inn applications on likelihood of confusion grounds. Indeed, the only federally-registered non-traditional lighting mark in the hospitality industry that I’m aware of, despite some admittedly modest searching, is one I obtained for Mystic Lake Casino & Hotel more than ten years ago, covering "a formation of light beams resembling the conical framework of a tipi emanating from a circular source of light."
My humble prediction is that a strong showing of look-for advertising is what it will take for Holiday Inn to avoid having their green and blue lights simply burn out at the Trademark Office.
Holiday Inn has until November to respond to the initial registration refusals, so stay tuned here on DuetsBlog for further developments.