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ARTICLE · 30 NOVEMBER 2018

TTAB Test: Do The Design Elements Make This Mark Eligible For Supplemental Registration?

Wolf Greenfield & Sacks
Wolf Greenfield & Sacks
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In a December 2017 decision the Board granted, in part, petitioner's motion for summary judgment [here] and ordered cancellation of a Supplemental Registration for the phrase MORE PROTEIN THAN SUGAR! in standard character form, finding that the purported mark is incapable of functioning as a trademark for "yogurt."

United StatesIntellectual Property

In a December 2017 decision the Board granted, in part, petitioner's motion for summary judgment [here] and ordered cancellation of a Supplemental Registration for the phrase MORE PROTEIN THAN SUGAR! in standard character form, finding that the purported mark is incapable of functioning as a trademark for "yogurt." However, as to respondent's second registration, the Board left open the question of whether the word+design version of the mark (shown below) is registrable on the Supplemental Register (with a disclaimer of the phrase). In other words, are the design elements - the font style, stacked wording, and curved lines - capable of becoming distinctive? How do you think this came out? The Icelandic Milk and Skyr Corporation v. Saga Dairy, Inc., Cancellation No. 92062423 (November 26, 2018) [not precedential] (Opinion by Judge Frances Wolfson).

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