Section 2(f) of the Lanham Act

We’ve been writing about the COKE ZERO trademark for nearly a decade now, noting in 2014:

“[I]t will be worth watching to see whether the [TTAB] finds that ‘ZERO’ primarily means Coke or just a soft drink having ‘no calories, you know, a drink about nothing . . . .’”

Turns out, in May 2016, Coke obtained a favorable decision from the TTAB, ruling that ZERO is not generic for a soft drink category, instead it is descriptive and Coke has secondary meaning in it.

With that victory in hand, we then questioned Coke’s thinking in launching obvious generic use of ZERO, welcoming Coke Zero to the Genericide Watch, given this categorical and non-brand use:

Then, two months ago, the CAFC decided — on appeal — that the TTAB got it wrong, ruling it:

“[F]ailed to consider whether consumers would consider the term ZERO to be generic for a subcategory of the claimed genus of beverages – i.e., the subcategory of the claimed beverages encompassing the specialty beverage categories of drinks with few or no calories or few or no carbohydrates.”

We’re now back to the question we asked in 2014: “[I]s ZERO like LIGHT for beer, STONE OVEN for pizza — basically denoting the name of a product category instead of a source identifier?”

As to the next steps, the CAFC sent the case back to the TTAB, instructing it to “examine whether the term ZERO, when appended to a beverage mark, refers to a key aspect of the genus.”

TM types, is Professor McCarthy right that the CAFC ruling makes it too easy to find genericness?

I’m left wondering, given the floodgates that have opened up to other beverage brands also using ZERO as a generic category term for “no calories” or “no sugar” — is fighting for ZERO worth it?

 

 


 

 


Will Coke continue to fight for ZERO as a trademark? Or, should it make better soda instead?

How can The Coca-Cola Company even keep the trademark pursuit of ZERO going, when it already appears to have made the choice of making a better soda through its independent unit, Honest?


SteepTea

The grocery aisles are fertile grounds for my keyboard, as you know. And, while I’m generally far more interested in coffee grounds than tea leaves (unless we’re speaking of the iced variety or reading between the lines of court decisions), the above shown box of tea bags caught my eye.

What initially captured my interest is the large yet engaging lower case branding of the word “steep” followed by the diminutive signature line “by BIGELOW” in all caps.

Given the descriptive character of the visually-emphasized word “steep” in connection with tea, and the “by” signature line of the well-known BIGELOW tea brand, my instincts told me a USPTO search would reveal a crowded field of marks containing STEEP, likely fueling my assumption that “steep” couldn’t be owned as a trademark for tea standing alone.

Turns out, STEEP was federally-registered back in 2004, for tea (as a single word mark with no style limitations), pursuant to an apparent showing of acquired distinctiveness under Section 2(f) of the Lanham Act, but the registration expired in 2010 and was cancelled under Section 8 of the Lanham Act in 2010, making way for the crowded field I imagined.

It also turns out, there is more to the story than I have time today to turn over every tea leaf of this one: The apparent principal behind the expired registration is back at the USPTO with a new STEEP application, claiming continuous use of STEEP for tea since 1994.

The irony is that the STEEP BY BIGELOW registration (first use in 2015) is now barring registration of the new STEEP application, here is the recent likelihood of confusion refusal.

So, I’ll leave you with a few questions that come to mind.

First, what’s the next move for the STEEP applicant?

And, looking back in time, did Bigelow add the signature line underneath the prominent use of “steep” to facilitate registration of STEEP BY BIGELOW and perhaps reduce the perceived risk of a trademark conflict with the prior registrant of STEEP for tea?

If so, will Bigelow regret not volunteering a disclaimer of the descriptive word “steep” since the USPTO oddly didn’t ask for one?

Assuming there are prior common law rights in STEEP and Bigelow wants to explain the lack of a disclaimer, might it point to the unitary mark theory?

Better yet, will the ineffective opposition (filed by the apparent principal of the prior registrant of STEEP) bar a future petition to cancel STEEP BY BIGELOW (to clear the path for re-registration of STEEP standing alone)?

If there are, in fact, prior common law rights in STEEP and the principal behind the STEEP application finds a way to federal court, has Bigelow relinquished a classic fair use defense in making “steep” part of its trademark use?

Finally, if risk avoidance is the goal (hoping for a steep slide into neutralizing a likelihood of confusion claim), might it be more effective to play with the meaning of the marks element of a likelihood of confusion claim, perhaps by adding graphic elements that invite other meanings of “steep” as compared to the more obvious one for tea?

Earlier this month Southwest Airlines launched a brand new ad campaign called “Transfarency,” which is said to highlight the airline’s “low-fare credo and its lack of bag fees, change fees or hidden fees for passengers.

TransfarencyChartTransparency seems to be the buzz word in branding and marketing circles lately, so what better way to communicate it than through coining a new word that tries to makes you think of it?

Sounds complicated, why not just say, Bags Fly Free, you ask? One answer might be, been there, done that. Another might be, someone was bored. But most likely, the Transfarency campaign appears to build on and broaden the previous success of the narrower Bags Fly Free campaign: “Transfarency is not a new chapter for us, but another tone to the bell that we’ve been ringing for more than 44 years.

Let’s just say, that’s Strategery at its finest!

The airline’s Transfarency website speaks of “Low fares. Nothing to hide.” It goes on to explain: “We’re all about being open and honest with Customers and making sure pesky fees stay away from our low fares.”

Under the clever hashtag “FeesDontFly” the airline taunts the competition: “Are you over other airlines charging you first and second checked bag fees, change fees, and what-the-heck-was-that-even-for fees? At Southwest we do things differently.”

A Southwest Airline executive is quoted as saying: “People are tired of being nickeled and dimed and it’s time to remind people that there is a different airline out there.” And, in doing so, one of the ads says: “We don’t dream up ways of tricking you into paying more.

It will be interesting to see whether any of Southwest’s named competitors try to ground any of these statements as false or misleading advertising.

As much as I can’t stand the nickeling and diming by other airlines, I’m not sure it’s fair to call those fees hidden, or tricks? I’d call them painful, annoying, maybe more than irritating, at times.

Now, back to the Bags Fly Free tagline for a moment. It’s not surprising to me that the BAGS FLY FREE tagline initially registered on the Supplemental Trademark Register, back in 2009, as a merely descriptive mark lacking inherent or acquired distinctiveness.

What was a bit surprising to learn is the current status of the more recent BAGS FLY FREE registration on the Principal Register. While the USPTO’s online TESS page shows the mark to be registered under Section 2(f) of the Lanham Act, meaning the mark has acquired distinctiveness since its first use back in 2009, the TSDR Page and the registration itself bears no reference to Section 2(f).

Southwest argued for inherent distinctiveness, contrary to its previous acceptance of a Supplemental Registration in 2009, with arguments for suggestiveness gems like this:

“The phrase ‘bags fly’ creates a mental image of flying suitcases. There is, however, no instantaneous association of one specific service to Applicant’s mark because of the literal meaning of ‘bags fly,’ which is nonsensical. For this reason, thought and imagination is required to understand the relationship between the Applicant’s mark and its services.”

But Southwest, at the same time, hedged its bet on this argument, also arguing in favor of acquired distinctiveness under Section 2(f), in the alternative, putting in significant evidence in favor of establishing that the mark has acquired distinctiveness.

The question remains, did the USPTO intend for the most recent BAGS FLY FREE registration to issue on the Principal Register as an inherently distinctive mark, without a showing of acquired distinctiveness, or was it an oversight, and did the USPTO really intend for the mark to register under Section 2(f), as the TESS page appears to indicate?

A little transparency on whether the USPTO actually bought the suggestiveness ticket about flying suitcases would be nice. I’m thinking, most Examining Attorneys would have checked that one at the baggage claim.

Either way, one more possible advantage of Southwest’s Transfarency approach is that there is no reasonable question about whether that mark is inherently distinctive — so, no need for any showing of acquired distinctiveness is required.

News flash, last Friday the USPTO approved for publication a non-traditional trademark that I’ve seen in real life before. Let’s just say it is attached to one of our many remote control devices that I’ve had to dig out from under the sofa cushions more than a few times:

RokuPurpleTagThe claimed mark consists of “the configuration and material composition comprising a fabric tag in the color purple attached to the housing of the goods.” Note how the purple tag shown on the drawing doesn’t include the ROKU brand name:RokuDrawing

I’m thinking the USPTO should have required that the drawing to the right and the specimen of use match, and then the ROKU brand name appearing in white could have been shown in dotted lines to make clear it wasn’t being claimed as part of the non-traditional trademark. Do you trademark types out there agree?

The Examining Attorney at the USPTO assigned to the application asked Roku for the following information and documentation:

(1) A detailed explanation as to what purpose or function the “fabric tag” serves as used on the goods.

(2) Any available advertising, promotional or explanatory literature concerning the goods, particularly any material that relates specifically to the applied-for color mark and configuration.

(3) An explanation as to the use of the identified “fabric tag,” or similar tag, if any, extending from the housing of electronic goods, in applicant’s industry and any other similar use in applicant’s industry.

(4) Color photographs and color advertisements showing competitive goods in applicant’s industry using tags appended to housings for related goods.

(5) An explanation as to whether and how the goods’ function, purpose and cost are affected by the “fabric tag.”

Roku’s response was brief and to the point, but one might debate whether it covered all the requested points, information, and documentation:

“The Examining Attorney requested additional information and responses to inquiries regarding Applicant’s mark. Applicant responds as follows: 1. The purpose or function of the purple fabric tag is to be a label for the goods, just as a fabric tag is used as a label for articles of clothing. 2. Attached is a screen shot from Applicant’s website showing the mark as used on the goods. 3. To the best of Applicant’s knowledge and recollection, no others in Applicant’s industry use a fabric tag as a source identifying label or indicator of origin on the housing of these consumer electronic devices. Applicant is unaware of any goods in its industry that use fabric tags appended to the housings of the goods. 4. The function, purpose and cost of Applicant’s goods are unaffected by Applicant’s appending of a fabric tag on the goods. The fabric tags offer no particular functional or cost advantage of any kind. They merely serve as an inherently distinctive indicator of origin given the uniqueness of having a fabric tag appended to the housing of consumer electronic goods such as those produced by Applicant and those in its industry.”

Nevertheless, the brief response immediately led to approval of the claimed inherently distinctive mark for publication. I’ll have to say, it was more than a bit surprising to me that the response didn’t trigger a lack of distinctiveness refusal, at least as to the color purple, especially since the four prior registrations Roku was asked to claim ownership of were all non-distinctive Supplemental Registrations: 43296634329664, 4329666, and 4336488.

To the extent you, like me, thought about the apparent inspiration of Levi’s red pocket tab on jeans, David recognized that point, long ago, nearly five years ago now.

So, the claimed non-traditional color/fabric trademark has been around almost five years now, but why wasn’t a disclaimer of the color purple required unless Roku could prove up a partial acquired distinctiveness claim as to the color purple?

It is easy for some to get all tied up in knots at the USPTO when facing challenging grounds for refusal against federal registration of a claimed non-traditional trademark. Not Bottega Veneta.

Last week the Swiss-owned fashion house and luxury brand was able to persuade the USPTO to approve for publication the three dimensional knot (shown to the right) as a non-verbal trademark for “handbags, shoulder bags, ladies’ handbags, clutch bags and purses”:

The mark is described this way: “[It] consists of a configuration, namely a three-dimensional knot with caps at each end, affixed to a clasp on the goods.” Registration was initially refused registration as a non-distinctive product design under Sections 1, 2, and 45 of the Lanham Act.

But, the recent 586-page submission, touting more than $18 million in sales over the past decade, more than $5 million in advertising since 2003, favorable declarations from a few fashion industry experts, and a good deal of unsolicited media attention and mentions of the iconic knot design, carried the burden of showing acquired distinctiveness under Section 2(f) of the Lanham Act (as the USPTO was not persuaded that the knot design could be considered inherently distinctive). The knot design is a feature of the configuration of the goods, so Supreme Court precedent would appear to make impossible a successful inherently distinctive trademark claim.

I was left wondering about whether look-for advertising played a role in Bottega Veneta’s success, but it appears not. Although none was required for the showing of acquired distinctiveness, there was no specific mention of look-for advertising in the Bottega Veneta submission to the USPTO, despite the existence of a few helpful references on the Bottega Veneta website:

The knot design is not limited to appearing on bags and purses, it appears. Just last month, Bottega Veneta’s same knot design trademark was published for opposition, as an inherently distinctive intent-to-use trademark for various personal care products in Int’l Class 3, but as the image below reveals, the mark already appears to be in use at least with women’s fragrances:

To the extent you’re wondering why the knot design for personal care products could be approved for publication with no showing of acquired distinctiveness — unlike the knot design as applied to bags and purses — the answer is: fragrances and personal care products don’t have configurations. So, unlike the knot design that forms a portion of the bag or purse, when it comes to fragrances and personal care products, the knot design forms a portion of the packaging for those products. As we have noted previously, the Supreme Court has indicated inherently distinctive product configurations are not possible, but inherently distinctive product packaging or containers are possible.

Having said that, the Examining Attorney at the USPTO appears to be reserving the right to refuse registration without a showing of acquired distinctiveness — even for the knot design in connection with fragrances — once Bottega Veneta submits evidence of use in connection with the claimed personal care products. In fact, it advised Bottega Veneta “that, upon consideration of an allegation of use, registration may be refused on the ground that the applied-for mark, as used on the specimen of record, is a nondistinctive configuration of packaging for the goods that is not registrable on the Principal Register without sufficient proof of acquired distinctiveness.”

I’m thinking that if such a refusal is issued after evidence of use is submitted, Bottega Veneta will be able to untie that knot as well, do you agree?

Last, I love the way Bottega Veneta has given the non-traditional knot design a name, not surprisingly it’s KNOT — and the luxury brand owner is seeking federal registration of the word too. What is surprising, however, is the USPTO’s initial registration refusal based on mere descriptiveness for Int’l Class 18 goods, such as purses and bags:

“Registration is refused because the applied-for mark merely describes a feature of applicant’s goods.  Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq.

A mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of an applicant’s goods and/or services.  TMEP §1209.01(b); see, e.g., DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)).

The term KNOT means “an interlacement of the parts of one or more flexible bodies forming a lump or knob (as for fastening or tying together).”  Please see the attached definition from the Merriam-Webster Online Dictionary.

As shown by the attached evidence from AStitchAHalf.com and PatternPile.com, the term merely describes bags and purses that are closed by tying a knot with the straps.  As such, the mark merely describes a feature of the applicant’s goods in Class 18.

Accordingly, because the applicant’s mark is merely descriptive under Section 2(e)(1) of the Trademark Act, registration is refused.”

I’d call that a pretty loose knot, wouldn’t you?

The Sports Bar in the Mirage Resort & Casino, located in Las Vegas, Nevada, is currently sporting a pretty interesting collection of tap beers, from left to right: Bud Light, Goose Island Honker’s Ale, Stella Artois, Heineken, Dos Equis, Pacifico, Shock Top, Newcastle, Samuel Adams, Budweiser, Goose Island Indian Pale Ale, and Michelob Ultra.

What really caught my attention is the three-dimensional trade dress and branding collage of competitive beer tap handles a/k/a beer tappers — on a rainforest background, hence the jungle.

These branded beer tap handles no doubt qualify as point of sale devices, linking the appearance of the handles to the beer that flows from the attached taps. But, could you identify the beer brands without the names on the handles? Is there an opportunity for non-verbal branding here? Goose Island seems to think so.

By the way, did you know that there are design firms that specialize in creating exceedingly unique tap handles? It actually makes sense. Apparently it is common knowledge in the industry that “great tap handles pour more beer,” as noted by Tap Handles, located in Seattle. So, there is a business case for these grandiose designs.

This business case opens the door to non-traditional trademark protection. And, most impressive from a non-traditional trademark perspective is the pair of Goose Island beer tap handles. Impressive because all of the other beer brands rely on verbal branding elements to identify, distinguish and indicate source, but Goose Island’s white goose with a yellow beak stands on its own without any easily visible verbal branding reinforcement.

The confidence in this non-verbal branding decision reminds me of Nike’s Swoosh, Starbuck’s Siren, McDonald’s Golden Arches, and Shell Oil’s Shell Logo — examples where no words are necessary to function as a trademark to signify the underlying brand.

So, where is the potential bungle in this jungle of beer tappers? Maybe it isn’t an outright mistake as much as a missed opportunity. And, maybe a change in trademark law has opened a new likelihood of pitfalls and mistakes for the uninformed.

As to the missed opportunity, for some reason, the three-dimensional non-verbal design is actually not registered for beer. This is curious, as Goose Island is a Fulton Street Brewery brand, owned by Anheuser-Busch, a company quite familiar with protecting brands in connection with the consumable product known as beer.

The Goose Island beer tap handle instead is federally-registered as a product configuration trademark for “hand tools, namely beer taps.” The registration utilizes this description of the claimed mark: “A configuration of a beer tap handle in the form of a goose head and neck with an oval design at neck level. The mark is lined for the colors yellow and green.” And, another nearly identical registration exists too, with a filing date one day later and a registration date about three months later — this one appears to be silent as to any written description of the claimed mark.

Instead of duplicating protection for the products known as beer tappers themselves, a non-traditional trademark registration protecting beer would appear to be warranted. While I recognize that there is value in protecting the shape and appearance of the beer tapper itself, because there appears to quite a market for beer tap handles, and they readily can be imitated, copied, counterfeited, bought and sold online, let’s face it, revenue and profits from the product known as beer has to exceed the same from the beer tap handles, right?

Now, as to the law change, for studious readers who noticed that the pair of non-traditional goose head product configuration trademarks that are federally-registered for beer tap handles (not beer) were not registered under Section 2(f) of the Lanham Act (meaning that no proof of acquired distinctiveness was required by the USPTO to achieve registration), the explanation must lie in the fact that both registrations issued months before the U.S. Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Samara Brothers, Inc.

Recall that back in March 2000 in Wal-Mart Stores, the Supreme Court drew a black and white line between non-traditional trademark protection for product configurations (which now must have proof of acquired distinctiveness or secondary meaning to enjoy protection or registration) and non-traditional trademark protection for product packaging or trade dress (which may forego proof of acquired distinctiveness so long as the claimed non-traditional trademark is sufficiently unique to qualify as being inherently distinctive).

What does all this mean? Well, it ought to be — and it does appear to be — easier to obtain protection and registration of beer tap handle designs as point of sale devices for beer. When the product in question is beer flowing from a tap, the handle design does not constitute a product configuration of the goods, so the limiting rule in Wal-Mart Stores does not apply. On the other hand, when the product in question is the beer tap handle itself, now the limiting rule in Wal-Mart Stores does apply because the design represents the actual configuration of the product, making evidence of acquired distinctiveness required.

So, it seems to me, the best way to protect exclusivity in the appearance of the tap handle design before trademark distinctiveness can be acquired for the handles is to obtain a non-traditional trademark registration for the tap handle design covering beer, and then also consider a copyright registration and/or design patent for protection of the handles themselves, agree?

 

 

 

 

 

 

 

 

 

Diageo, the Tanqueray brand owner is currently running billboard ads in the Twin Cities as part of its “Tonight We Tanqueray” ad campaign. A couple of years back when the campaign first was announced, Diageo explained it this way:

“One of the world’s most awarded gins, Tanqueray London Dry has just launched a substantial new global campaign ‘Tonight we Tanqueray’, positioning Tanqueray as the drink to set the tone to an evening, inviting consumers to start the night right.”

Did you notice the verbing of the Tanqueray brand and trademark? Nancy Friedman over at Fritinancy did last year. As risky as verbing can be for some brands, as we previously have discussed extensively here, here, here, here, and here, Diageo appears to have gotten this one right, making a number of choices consistent with our earlier checklist for mitigating the risk of genericide and avoiding a complete loss of trademark rights.

Diageo obtained federal registrations for TONIGHT WE TANQUERAY and the stylized version depicted in the ads shown above, two years ago. And, it appears another Tanqueray verbing tagline was federally-registered six years ago for READY TO TANQUERAY? — but unless a Section 8 & 15 Declaration is filed during the currently open grace period, it will die a natural death.

One of the non-legal consequences of using TANQUERAY as a verb in these taglines is that consumers naturally will fill in the blank on what the brand means to them so that they can ascribe meaning to the tagline. I suppose this invitation for engagement could be good or bad, depending on how the brand is perceived. Given the title of this blog post, I have filled in the blank for TANQUERAY to be synonymous with TOAST or CELEBRATE. What does the brand mean to you?

The ads shown above also depict something else we have written extensively about here: non-traditional trademarks. Note the classy and unspoken “look-for advertising” to promote the Tanqueray green/red color trade dress and bottle configuration (both federally-registered decades ago).

Last, for the history buffs out there, note the wonderful archive of product labels that can be obtained from the online records at the USPTO, here the front and back of a nearly century old product label for TANQUERAY gin, showing the USPTO’s mail room stamp from 1917:

Until seeing this specimen I hadn’t appreciated Tanqueray is the surname of the brand’s founder Charles Tanqueray.

It must be a very rare surname as the Diageo marks are the only ones in the entire USPTO database containing the term TANQUERAY. And, none of the registrations rely on Section 2(f) of Lanham Act for purposes of distinctiveness.

Have you ever met someone named Tanqueray?

Last week, Works Design Group highlighted five vodka bottle designs to love. No doubt, a nice collection of very creative work. This stacked ice cube design is my favorite from their set:

The skull bottle design shown below also made Works’ top five, and it is certainly eye-popping. It was created by John Alexander, Dan Aykroyd’s co-founder of Crystal Head Vodka. Works loves “this package design because of its unique shape and distinctive look.” Apparently the USPTO agrees on the point about distinctiveness, as it is the only one of the five that appears to be federally-registered as a non-traditional product container trademark. Inherently distinctive too.

We’d probably suggest adding another to the Works’ list, as our friends over at Capsule have designed a pretty awesome award-winning vodka bottle for the Double Cross brand (dubbed “a sacred vessel”):

So, what is it about vodka that inspires such creative effort and success in package and container designs? Works answers the question this way:

“When it comes to driving sales and building brand equity in the spirits world, package design and advertising are often more important than product quality (one notable exception is Tito’s Vodka, which has exploded onto the scene without premium package design and with precious little advertising).  Most packages in the vodka category feature clear or clouded glass bottles, and most brands compete with sexy, simple and premium designs.  Differentiation is the name of the game, and also a very difficult feat to accomplish.”

As a trademark type, and to the point made about differentiation of vodka brands through package design, this left me wondering what other vodka bottle designs beyond Aykroyd’s skull design have received a passing grade at the USPTO, when it comes to trademark ownership of non-traditional trademark rights in the appearance of the container, or to use Capsule’s richer word, vessel?

As it turns out, these vodka container configurations have received passing grades in the trademark world, because each has been federally-registered or approved by the USPTO for publication, as an inherently distinctive design mark, from left to right, the elephant design, a guitar design, an embedded pebbled design; and a pink camouflage pattern design:

   

In addition, these vodka bottle designs also have received passing grades at the USPTO, moving from left to right, the square bottle design, stylized bottle design, angled plane design, and egg-shaped form on legs with an eagle on top, but not as inherently distinctive designs, instead as ones that have acquired distinctiveness with proof of secondary meaning under Section 2(f) of the Lanham Act:

   

 

 

 

 

 

 

And finally, these vodka bottle designs have not made a passing grade at the USPTO, each residing on the Supplemental Register, where they are designated only as capable of distinctiveness, but not yet so, moving from left to right, the conjoined cylindrical shapes design, parallel lines designflared base design, and the Imperial Crown of Russia design:

  

 

 

 

 

 

 

So, how would you grade each of the vodka bottle designs shown above, on trademark grounds, and on purely aesthetic or design grounds?

Given how much we know you enjoy the subject of non-traditional trademark protection, here is a recent one from Anheuser-Busch:

The description of the mark reads: “The mark consists of a design feature of product packaging, namely, a red colored tab on a can, which features a crown design that is transparent. The dotted lines outlining the top of the can, outlining the tab, and all other lining on the tab, indicate placement of the mark on the goods or are functional attributes of the can and the tab and are not claimed as part of the mark.”

The trademark registration for this product packaging design feature issued just last month as an inherently distinctive mark without the need for a showing of acquired distinctiveness and with fairly little flexing of trademark muscle or need of six-pack-ab-style effort during trademark prosecution.

If you’re one of those who can’t get enough of non-traditional trademarks, please join yours truly and Linda McLeod from the Finnegan Henderson firm for a 90-minute Strafford webinar/telephone conference on the subject, Wednesday February 8, 2012 at 1:00 – 2:30 PM EST, see details here.

First three people to leave a comment here may enjoy a complimentary attendance pass. Others who miss this freebie opportunity may register by January 20 and take advantage of Strafford’s early registration discount.

For the skinny on Budweiser’s Grab Some Buds campaign, see AdAge coverage, here.

For the skinny on Budweiser’s beer can redesign featuring the red-colored tab, see here.