On May 25, 2023, the Trademark Trial and Appeal Board (TTAB) reversed a refusal to register the Seminole Tribe of Florida’s (the “Tribe’s”) trade dress consisting of “a three-dimensional building in the shape of a guitar” (U.S. Application No. 87/890,892)—finding the trade dress to be “inherently distinctive” for casino services, hotel services, restaurant services, and bar services.
In ruling the trade dress was inherently distinctive for such services, the TTAB opined that although the examining attorney deemed the Tribe’s trade dress to be “nondistinctive [and] ambiguous” such that “acquired distinctiveness [would be] required before registration can be granted”—similar to that of Wal-Mart Stores, Inc. v. Samara Bros., Inc., 54 USPQ2d 1065 (2000)—the Tribe’s trade dress is “not a common design . . . is unique, and [is] not a mere refinement of a commonly-adopted and well-known form of ornamentation for” the aforementioned casino services, hotel services, restaurant services, and bar services. As such, the TTAB reasoned that under “the guidance of Two Pesos, Samara Bros., and In re Chippendales USA,” the Tribe’s trade dress is “’tertium quid’ that is akin to product packaging”—illustrating the trade dress as “of such a design that a buyer will immediately rely on it to differentiate the product from those competing manufacturers . . . .” Therefore, the TTAB reversed the refusal to register the Tribe’s trade dress, allowing the application to proceed to registration and obviating the need to rely on the Tribe’s previously-accepted claim of acquired distinctiveness under 15 U.S.C. § 1052(f).
The case is In re Seminole Tribe of Florida, 2023 USPQ2d 631 (TTAB 2023). The image above is provided in the TTAB’s Opinion, which can be found at the following link: https://ttabvue.uspto.gov/ttabvue/ttabvue-87890892-EXA-23.pdf.