Finding A Bearded Skull Design Merely Ornamental For Clothing, TTAB Affirms Failure-To-Function Refusal

[This is a guest post written by Stephanie Grace Stella, an associate in the Trademark Group at Wolf, Greenfield & Sacks, P.C.]. Finding that the bearded skull design, below, fails to function as a trademark for various clothing items, the Board affirmed a refusal to register under Sections 1, 2, and 45 of the Lanham Act. The Board concluded that the bearded skull design is merely a decorative feature of Applicant's clothing and does not function as a source identifier. In re Diesel Power Gear, LLC, Serial No. 87261073 (February 27, 2019) [not precedential] (Opinion by Judge Marc A. Bergsman).

Applicant Diesel Power sought to register the bearded skull design for vehicle accessories in International Classes 12 and 27 under Trademark Act Section 1(b), based upon Applicant's claim of a bona fide intent to use the mark in commerce, and for various clothing items in International Class 25 under Trademark Act Section 1(a), based upon Applicant's claim of use of the