We’ve written before on the subject of non-traditional trademarks and how look-for advertising can be quite helpful in not only educating consumers that a color or other design feature should stand out in their mind as performing the helpful role of a trademark, but in convincing the USPTO too.
Earlier this month the USPTO granted a fairly broad non-traditional federal trademark registration to Q.E.P. (owner of the NUPLA tool brand) to help protect the brand equity in the black stripe appearing on the handle of its tools, one example shown below:
What is especially interesting about the issued trademark registration is that the claimed mark is not limited to a black stripe on a yellow handle (even though some of the evidence to support a showing of acquired distinctiveness focused on the black color of the stripe), but it reads to cover any contrasting colored stripe on any color of tool handle, as the drawing shown below and this description of the mark reveals:
“The mark consists of a 3-dimensional configuration of a tool handle having longitudinally extending stripe of a color which contrasts with the principal color of the tool handle. In the drawing the dotted lines are illustrative of an exemplary of tool handle and are not part of the mark and serve only to show the position or placement of the mark on the tool handle.”
I’m thinking the Examining Attorney at the USPTO was persuaded as to the claimed showing of acquired distinctiveness, in large part, by the use of the reinforcing GET THE STRIPE tagline:
What do you think, does a brand owner need to use the clunky words “look-for” to gain the benefit of this kind of advertising, or would that be putting form over substance?
And, do you think the apparent protection of a contrasting stripe of any color is overbroad here?