Seattle Trademark Lawyer

Merry Christmas!

Of course, I’m referring to MERRY CHRISTMAS, Serial No. 78161138, the alleged trademark used in International Class 32 in connection with “non-alcoholic juice beverage, namely fruit juices.”  This application was abandoned in January 2005 after the PTO issued a final refusal because the alleged mark is merely ornamental and does not function as a trademark.

The examining attorney properly found the proposed mark “does not function as a trademark to indicate the source of the identified goods.” He added: “The slogan is merely a sentiment expressed by one to another. Therefore, the slogan is merely indicative of the sentiments of the participants and not used as a source indicator.”

That’s not to say MERRY CHRISTMAS can’t ever serve as a trademark. See, for example, Reg. No. 3254339 in International Class 3 for “Non-medicated skin care products namely scrubs; scented heat-to-toe body wash” and Reg. No. 3561707 in International Class 34 for “Cigar and cigarette boxes; Cigar and cigarette boxes not of precious metal; Cigar bands; Cigar boxes; Cigar boxes not of precious metal; Cigar tubes; Cigars.”

The difference in the MERRY CHRISTMAS marks is simple: the one that only serves as a sentiment and not a source indicator isn’t registrable; the ones that serve as an indicator of source function as a trademark and, therefore, are registrable like any other valid mark.