Generic Mark Lacked Sufficient Stylization to Serve as a Source Identifier

| Jeremiah S. Helm, Ph.D.


Before Lourie, Dyk, and Stoll, Circuit Judges. Appeal from the Trademark Trial and Appeal Board.

Summary: Stylizing an otherwise generic character mark using ubiquitous lettering does not make it a source identifier.

Vox is the domain registry operator for the .SUCKS generic top-level domain for Internet websites. Vox submitted two trademark applications for the mark “.SUCKS” to the USPTO. The first application was for a standard character mark, and the second application was for a stylized mark using pixelated letters. The TTAB determined that neither the standard character mark nor the stylized mark were registerable because neither mark served as a source identifier. The TTAB explained that the stylized .SUCKS mark did not create a separate commercial impression and was not sufficiently distinctive. Vox appealed the TTAB’s decision regarding the stylized mark to the Federal Circuit.

The Federal Circuit affirmed the TTAB’s decision. The Federal Circuit acknowledged that design or stylization may make an otherwise unregistrable mark registerable if the design features create an impression separate from the words themselves. However, in this case the court found that substantial evidence supported the TTAB’s finding that “given the ubiquity” of pixelated lettering “in the ‘early days’ of computing consumers would view pixelated lettering as ordinary” and not as a source identifier. Although marks with limited stylization may acquire distinctiveness, the ubiquity of the pixelated letter design mandated by earlier technological limitations rendered the .SUCKS stylization ordinary.

Editor: Paul Stewart