Ralph's Famous Italian Ices Franchise Corp.

This opinion is a precedent of the TTAB Mailed: June 25, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Ralph’s Famous Italian Ices Franchise Corp. _____ Serial No. 90302728 _____ David L. May, Alexis P. Grilli, and Maggie E. Horstman of Nixon Peabody LLP, for Ralph’s Famous Italian Ices Franchise Corp. Hai-Ly Lam, Trademark Examining Attorney, Law Office 119, Brett Golden, Managing Attorney. _____ Before Lykos, Greenbaum, and Casagrande, Administrative Trademark Judges. Opinion by Casagrande, Administrative Trademark Judge: Ralph’s Famous Italian Ices Franchise Corp. (Applicant) seeks registration on the Principal Register of the following proposed mark for the beverages and confections (frozen and otherwise) and restaurant services discussed below: . Applicant’s current description of the proposed mark, as amended, reflects that the proposed mark is used as trade dress, and reads: “The mark consists of a Serial No. 90302728 repeating pattern of alternating blue and white vertical stripes. The repeating pattern appears on a portion of the surface of the goods, on a portion of the packaging for the goods, on a portion of the building facades in which the services are offered, and on displays, marketing and advertising materials associated with the services” (“current description”).1 The colors blue and white are claimed as features of the proposed mark. The application identifies the following goods and services: Shakes; frozen drinks, namely, milk shakes, in International Class 29; Frozen confections; Beverages made of coffee; Beverages with a coffee base; Coffee-based iced beverages; Frozen drinks, namely, Italian ices, non-alcoholic frappes; Italian ices, in International Class 30; Fruit drinks, in International Class 32; Alcoholic beverages, except beer; Hard seltzer, in International Class 33; Restaurant franchising, namely, offering business management assistance in the establishment and/or operation of restaurants; franchise services, namely, offering business management assistance in the establishment and operation of retail business establishments featuring Italian ice, ice cream, and frozen drinks, in International Class 35; and Restaurant services; restaurant services featuring Italian ice, ice cream, and frozen drinks; serving food and drinks, in International Class 43.2 1 See May 17, 2024, Request for Reconsideration, at TSDR 16 (proposing this description); Aug. 16, 2024, Denial of Reconsideration, at TSDR 5 (accepting this description). Please note that any citations to specific pages of prosecution filings will be to .pdf-format versions of the documents as downloaded from the USPTO’s TSDR electronic trademark docketing system. 2 Application Serial No. 90302728 was filed on November 6, 2020, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of first use anywhere and -2- Serial No. 90302728 As presented to us for decision, the application stands refused on the following grounds: As to all identified classes of goods and services, the proposed mark fails to function as a trademark and service mark under Sections 1, 2, 33 & 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1052, 1053 & 1127, because it constitutes ornamental matter that is not inherently distinctive and Applicant has failed to prove its claim, which it made in the alternative, of acquired distinctiveness under Section 2(f), 15 U.S.C. § 1052(f);4 and As to the Class 35 franchising services only, the specimens do not show use of the proposed mark in commerce in connection with the identified services, as required under Sections 1 and 45, 15 U.S.C. §§ 1051, 1127, and Trademark Rules 2.34(a)(1)(iv) & 2.56(a), 37 C.F.R. §§ 2.34(a)(1)(iv) & 2.56(a).5 Applicant’s appeal also raises a question about the description of the proposed mark. During prosecution, Applicant had previously proposed amendments to the description in response to the Examining Attorney’s objections to prior descriptions.6 In the August 19, 2024, Denial of Reconsideration, the Examining Attorney accepted first use in commerce since at least as early as 2004 for each class of goods and services. Applicant amended its original identification of goods and services in its September 2, 2021, Response to Nonfinal Office Action. 3 Section 3 of the Trademark Act applies only to the services. 4 By claiming acquired distinctiveness in the alternative, see Feb. 3, 2023, Request for Reconsideration, at TSDR 21, Applicant avoided an implicit concession that its proposed mark is not inherently distinctive. See, e.g., In re Thomas Nelson, Inc., No. 76681269, 2011 WL 481341, at *1 (TTAB 2011). 5 See Dec. 5, 2024, Subsequent Final Office Action. We will note, however, that the Examining Attorney withdrew an initial refusal under Sections 1 and 45 of the Trademark Act that the proposed mark was a “swatch” drawing that sought registration of more than one mark. See May 30, 2024 Non-Final Office Action. 6 See Sept. 2, 2021, Response to Office Action; Aug. 29, 2023, Response to Office Action; May 17, 2024, Request for Reconsideration. -3- Serial No. 90302728 Applicant’s then-pending amendment to the description, resulting in the current description.7 Later, however, after Applicant appealed but before it filed its brief, Applicant requested that the Board remand the application to the Examining Attorney to consider yet another amendment to the description and to submit additional evidence in connection with the failure-to-function refusal.8 The Board found good cause and granted the remand,9 but on remand the Examining Attorney rejected the proposed amendment.10 In its appeal brief,11 Applicant, despite the current description having been deemed acceptable by the Examining Attorney, contests the rejection of its latest attempt to amend the written description of the mark. After the Examining Attorney filed a brief,12 Applicant filed a reply.13 The appeal is now ready for decision. For the reasons set forth below, we: (1) reverse the Class 35 franchising services specimen refusal; (2) accept Applicant’s proposed further amendment to the description of the proposed mark; but 7 See Aug. 19, 2024, Denial of Reconsideration, at TSDR 5. 8 See 7 TTABVUE. Please note that references to the briefs and appeal record cite to the Board’s TTABVUE electronic docket system. The number preceding “TTABVUE” represents the docket number assigned to the cited filing in TTABVUE and any number immediately following “TTABVUE” identifies the specifically-cited page(s), if any. 9 See 8 TTABVUE. 10 See 9 TTABVUE. 11 See 11 TTABVUE. 12 See 13 TTABVUE. 13 See 14 TTABVUE. -4- Serial No. 90302728 (3) affirm the refusal to register the proposed mark as to all goods and services because (i) the evidence shows that it is ornamental matter that is not inherently distinctive and (ii) Applicant has failed to prove its alternative claim that it has acquired distinctiveness. ANALYSIS I. The Class 35 specimen refusal We first address the Class 35 specimen refusal under Sections 1 and 45 of the Trademark Act because, if we agree with this partial refusal, we need not assess the distinctiveness of the proposed mark as to these services. The Class 35 services identified are: Restaurant franchising, namely, offering business management assistance in the establishment and/or operation of restaurants; franchise services, namely, offering business management assistance in the establishment and operation of retail business establishments featuring Italian ice, ice cream, and frozen drinks. The term “service mark” means “any word, name, symbol, or device, or any combination thereof … used by a person … to identify and distinguish the services of one person … from the services of others and to indicate the source of the services ….” Trademark Act Section 45, 15 U.S.C. § 1127. Under Section 45, a service mark is used in commerce “when it is used or displayed in the sale or advertising of services and the services are rendered in commerce.” Our rule governing specimens provides: “A service mark specimen must show the mark as used in the sale of the services, including use in the performance or rendering of the services, or in the advertising of the services. The specimen must show a direct association between the mark and the services.” Trademark Rule 2.56(b)(2), 37 C.F.R. § 2.56(b)(2); see also In re WAY Media, Inc., No. 86325739, 2016 WL 3566131, at *1 (TTAB 2016). -5- Serial No. 90302728 “[I]n assessing the specimens, consideration must be given not only to the information provided by the specimen itself, but also to any explanations offered by Applicant clarifying the nature, content, or context of use of the specimen that are consistent with what the specimen itself shows.” In re Pitney Bowes, Inc., No. 86502157, 2018 WL 360241, at *3 (TTAB 2018) (citing In re DSM Pharms., Inc., No. 78373640, 2008 WL 2385957, at *2 (TTAB 2008) (“In determining whether a specimen is acceptable evidence of service mark use, we may consider applicant’s explanations as to how the specimen is used, along with any other available evidence in the record that shows how the mark is actually used.”)). Applicant argues that its second substitute specimens, submitted in its May 17, 2024, Request for Reconsideration, demonstrate use of the proposed mark “in the rendering of its Class 35 services to its franchisees.”14 The May 17, 2024, filing contained Applicant’s averment that “The specimen(s) submitted consists of screenshots of the franchise portal login page and screenshot of order [page] from the Franchise portal.”15 These two screenshots16 appear below: 14 See 11 TTABVUE 23-24. 15 See May 17, 2024, Request for Reconsideration, at TSDR 5. In the request for reconsideration, Applicant declared “The substitute … specimen(s) was/were in use in commerce at least as early as the filing date of the application.” See id. 16 The screenshots appear at id. at 31-32. Duplicates appear at id. at 49-50. -6- Serial No. 90302728 -7- Serial No. 90302728 -8- Serial No. 90302728 The second of these two screenshots is illegible except for the words “PURCHASE ORDER.” There’s something that might be the proposed mark in the upper left of this screenshot, but we’re not sure because it’s so small and blurry. Trademark Rule 2.56(c) requires that a specimen consisting of a “web page printout” be “clear and legible.” So the second screenshot does not suffice because it is illegible. The first screenshot is legible, so it is not disqualified at the threshold. Applicant explains that this screenshot consists of “the log in page … offered by Applicant to its franchisees for completing online ordering.”17 Applicant contends that, under our precedents, it has satisfied the specimen requirement for its Class 35 restaurant franchising services. We agree. The services here are “Restaurant franchising, namely, offering business management assistance in the establishment and/or operation of restaurants; franchise services, namely, offering business management assistance in the establishment and operation of retail business establishments featuring Italian ice, ice cream, and frozen drinks.” It is helpful to understand, both as a business and a legal matter, what restaurant franchising is. The “cornerstone of a franchise system must be the trademark or trade name of a product. It is this uniformity of product and control of its quality and distribution which causes the public to turn to franchise stores for the product.” Krebs Chrysler-Plymouth, Inc. v. Valley Motors, Inc. 141 F.3d 490, 497 (3d Cir. 1998) (citation omitted); see also Howell v. Chick-Fil-A, Inc., Civ. No. 92-30188-RV, 1993 WL 603296, at *3 (N.D. Fla. Oct. 29, 1993) (“Chick-Fil-A tightly 17 See 11 TTABVUE 23. -9- Serial No. 90302728 controls the product which is sold in the restaurants operated by their independent contractors. Local restaurants are required to purchase their food and seasonings only from sources approved by Chick-Fil-A. … Of course, the central concept of fast food merchandising is a unique, standard product which will be instantly recognized by the public. Consequently, fast food franchisors strictly regulate the selection and preparation of the food to be sold by their franchisees. Such control is essential ….”) (citation omitted).18 It follows then that “Restaurant franchising, namely, offering business management assistance in the establishment and/or operation of restaurants” would involve ensuring that the foods sold meet the franchise quality standards. Providing franchisees an online means to order approved food and other approved supplies is thus a key component of Applicant’s services for its contractual partners, its franchisees. With these legal parameters and understanding of the broader restaurant franchising services in mind, it becomes clear under our caselaw that the combination of Applicant’s log-in portal screenshot and accompanying explanation of how the page relates to the identified restaurant franchising business management assistance services together are sufficient to show or demonstrate use of the mark on the specimen for the identified services.19 For example, in Pitney Bowes, the services were 18 Indeed, to constitute a valid trademark license of any sort, the licensor must exercise quality control. See Visa, U.S.A., Inc. v. Birmingham Trust Nat. Bank, 696 F.2d 1371, 1377 (Fed. Cir. 1982) (“The principal requirement … is that the licensing agreement provides for adequate control by the licensor over the quality of goods or services produced under the mark by a licensee....”) (cleaned up; citation omitted). 19 Here, Applicant accompanied its second substitute specimens with a declaration that averred that “[t]he specimen(s) submitted consists of screenshots of the franchise portal login - 10 - Serial No. 90302728 “mailing services” and the mailing kiosk depicted in the specimen (a screenshot) referred to mailing services provided by others. See 2018 WL 360241, at *1-2. Looking at the specimen by itself, we acknowledged that the examining attorney had “reasonably found the specimen unclear as to whether Applicant, rather than a third party, provides the services ….” Id. at 4. But Pitney Bowes then submitted a declaration explaining: These kiosks are furnished by Applicant and are placed in different locations for use by consumers. Consumers use the kiosk to place postage on a letter or package, and then place that [letter or package] in the receptacle that is part of the kiosk system for Applicant to pick up the letter or package and place it in the mail stream for delivery. Id. at *1. Looking at the specimen together with the explanation, we held that Pitney Bowes’ “explanation of the specimen and how [it] provides the outsourced mailing services referenced on the specimen resolved the ambiguity, and the refusal should not have been maintained.” Id. at *4. We thus found that “the original specimen demonstrates use of the mark in a manner that creates in the minds of potential consumers a direct association between the mark and at least some of the services in the class, and the explanation corroborates this in a manner that removes any doubt.” Id. To the same effect is our decision in In re Metriplex, Inc., No. 73836597, 1992 WL 169149 (TTAB 1992), which Applicant cites.20 In Metriplex, the specimen showed only page and screenshot of order [page] from the Franchise portal.” See May 17, 2024, Request for Reconsideration, at TSDR 5. 20 See 11 TTABVUE 23. - 11 - Serial No. 90302728 the mark itself as it appears on a computer screen with no other reference to the services. But the services were provided via a computer and, “[a]s applicant explained in its declaration, the specimens show the mark as it appears on a computer terminal in the course of applicant’s rendering of the service.” Id. at *2. We thus held that “[t]here is no question that purchasers and users of the service would recognize [the mark], as it appears on the computer screen specimens, as a mark identifying the [identified services]. Thus, the printouts constitute specimens of the mark as used in the sale of the services.” Id.; see also In re JobDiva, Inc., 843 F.3d 936, 940, 942 (Fed. Cir. 2016) (Board erroneously failed to consider JobDiva’s CEO’s testimony that JobDiva curated and aggregated resumés on job boards for subscribers to access via Job Diva’s personnel placement software). Citing, inter alia, In re Universal Oil Prods. Co., 476 F.2d 653, 655 (CCPA 1973), the Examining Attorney argues that “[a] specimen must show the mark used in a way that would create in the minds of potential consumers a sufficient nexus or direct association between the mark and the services being offered.” 13 TTABVUE 19. That is correct as a general statement of the law. See, e.g., JobDiva, 843 F.3d at 941-42 (“The question is whether a user would associate the mark with ‘personnel placement and recruitment’ services performed by JobDiva, even if JobDiva’s software performs each of the steps of the service. In other words, the question is whether the evidence of JobDiva’s use of its marks sufficiently creates in the minds of purchasers an association between the marks and JobDiva’s personnel placement and recruitment services.”) (cleaned up; citation omitted). - 12 - Serial No. 90302728 But the Examining Attorney does not explain how this general legal principle supports the specimen refusal here. If, by this statement, the Examining Attorney means that the specimen itself—apart from any declaration or other document(s) submitted along with it21—must by itself refer to “franchise services, namely, business management assistance in the establishment and operation of retail business establishments featuring Italian ice, ice cream, and frozen drinks,” we disagree that Universal Oil supports this argument. Universal Oil held that there must be “some direct association between the offer of services and the mark sought to be registered therefor” (emphasis in original). Id. at 655. The Court presumably emphasized the term “services” in that sentence because the problem in that case was that the brochure that the applicant offered as a specimen showed the marks PACOL and PENEX in connection with two different chemical processes offered by the applicant but, as the Court pointed out, “[n]owhere in this brochure, however, is there a reference to PACOL or PENEX services.” Id. at 654. Because the specimen showed the marks being used in connection only with something other than the identified services, the Court affirmed the Board’s determination that the specimen was insufficient. That is not the case here, as the combination of the log-in page for Applicant’s order entry system, together with Applicant’s explanatory declaration, shows use of the mark in connection with the rendering of Applicant’s Class 35 “franchise services, namely, offering business management assistance in the establishment and operation of retail business establishments featuring Italian ice, 21 A declaration or sworn statement is preferable, but it is not required in all circumstances. - 13 - Serial No. 90302728 ice cream, and frozen drinks.” See, e.g., Pitney Bowes, 2018 WL 360241, at *4; Metriplex, 1992 WL 169149, at *1.22 Here, the combination of the “Ralph’s Order Entry System” log-in page, together with Applicant’s declaration explaining the page, suffices to show the proposed mark as used in rendering a part of the identified services in Class 35. We therefore reverse the Class 35 specimen refusal.23 II. Is the proposed mark inherently distinctive for the goods and services in each identified International Class? We now turn to whether the proposed mark—a repeating pattern of alternating vertical blue and white stripes—is inherently distinctive or, instead, constitutes ornamental matter that is not inherently distinctive as to the identified goods and services. A. Two preliminary matters Before we assess the evidence bearing on whether the proposed mark is inherently distinctive, there are two preliminary matters to address. 22 We also think the Examining Attorney’s statement that the specimen must “create in the minds of potential consumers a sufficient nexus or direct association between the mark and the services being offered” (emphasis added) could reflect an incomplete statement about specimen acceptability for services. Specimens for services may reflect, as this screenshot does, the mark as used in rendering the service to those who receive the services. See Trademark Rule 2.56(b)(2), 37 C.F.R. § 2.56(b)(2). The Examining Attorney’s statement, however, could be read as limiting specimens to those used in selling or advertising the services. 23 Because we reverse the Class 35 specimen refusal based on the second substitute specimens that Applicant submitted with its May 17, 2024, Request for Reconsideration, it is unnecessary to consider whether Applicant’s original or first substitute specimens show service mark usage for Class 35. - 14 - Serial No. 90302728 1. The description of the proposed mark We first need to address a dispute about the description of the mark. “A description of the mark must be included if the mark is not in standard characters.” Trademark Rule 2.37, 37 C.F.R. § 2.37; see also Trademark Rule 2.52(b)(5), 37 C.F.R. § 2.52(b)(5). Trademark Rule 2.52(b)(1) provides that for special form drawings, “[t]he applicant must include a clear drawing of the mark when the application is filed.” In addition, for an application to register a mark that “includes color,” “the drawing must show the mark in color, and the applicant must name the color(s) [and] describe where the color(s) appear on the mark … .” 37 C.F.R. § 2.52(b)(1). Section 808.02 of the TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) (May 2026) provides the following guidance: “the description should state clearly and accurately what the mark comprises, and should not create a misleading impression… .” Section 1202.19(b), which applies to marks comprising repeating patterns, adds that the description must be “accurate” and “identify the various elements of the pattern.” “It is sufficient for the description to generally characterize the elements and indicate that they are repeated.” Id. As with all types of marks, “[f]or repeating patterns featuring color, the application must include an appropriate color claim and the description must indicate where the claimed colors appear.” Id. And for repeating patterns used in connection with goods, “the description must specify how the pattern will appear on the relevant items;” and whether the pattern appears over the entire surface of the item or only a portion of the item itself or packaging. Id. - 15 - Serial No. 90302728 The description of a mark is especially important for marks comprising trade dress. In In re Data Packaging Corp., 453 F.2d 1300 (CCPA 1972), the Court discussed the U.S. Supreme Court’s decision in Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co., 201 U.S. 166 (1906), and explained why this is so. The Data Packaging decision described how, in Leschen, “the description of appellant’s trademark contained in its registration” stated ‘The trademark consists of a red or other distinctly colored streak applied to or woven in a wire rope.’” Data Packaging, 453 F.2d at 1303 (emphasis added). But the drawing of the mark in the application showed the “streak” to be red and woven “within the strands.” See id. The Data Packaging Court noted that this discrepancy between the drawing and the written description of the mark led the U.S. Supreme Court to hold the registration invalid because a competitor “might, by adopting a white streak running along the length of the rope across the strands, find himself an infringer, when his real object may have been to obtain a mark which would distinguish his manufacture from that of the plaintiff’s.” See id. (emphasis added). As we mentioned at the outset, the most recent description that the Examining Attorney found acceptable was: The mark consists of a repeating pattern of alternating blue and white vertical stripes. The repeating pattern appears on a portion of the surface of the goods, on a portion of the packaging for the goods, on a portion of the building facades in which the services are offered, and on displays, marketing and advertising materials associated with the services.24 24 See May 17, 2024, Request for Reconsideration at TSDR 2 (asking to amend description); see also August 19, 2024, Denial of Reconsideration, at TSDR 5 (accepting this description). - 16 - Serial No. 90302728 Following the institution of this appeal, Applicant filed a request to remand the application to the Examining Attorney for consideration of a proposed amendment to the description to read (additional language shown in bold): The mark consists of a repeating pattern of alternating blue and white vertical stripes, which are of equal width and proportion. The repeating pattern appears on a portion of the surface of the goods, on a portion of the packaging for the goods, on a portion of the building facades in which the services are offered, and on displays, marketing and advertising materials associated with the services.25 The Examining Attorney, however, denied Applicant’s request to amend the description, stating: The additional language “which are of equal width and proportion” is unacceptable as being inaccurate because the alternating blue and white vertical stripes are NOT of “equal width and proportion”. Here, the blue vertical stripes are thinner than the white vertical stripes. As such, the proposed mark description amendment is unacceptable.26 Applicant insists otherwise, hypothesizing that the Examining Attorney has fallen prey to an optical illusion whereby the human eye perceives the white lines as larger than the alternating and contrasting darker colored blue lines.27 Neither the Examining Attorney’s nor Applicant’s position is accompanied by evidence (except, of course, the drawing itself). And both seem like reasonable positions. As such, we We read that wording “appears on a portion of the surface of the goods” to include the cups and containers in which many of the goods—such as those identified in Classes 29, 30, and 32—are sold (for example, in restaurants and at ice cream/ices stands). Cf. TMEP Section 904.03(k) (discussing specimens for marks that are impracticable to place on goods). 25 See 7 TTABVUE 2 (Oct. 11, 2024, Request for Remand). 26 See 9 TTABVUE 2 (Dec. 5, 2024, Subsequent Final Office Action). 27 See 14 TTABVUE 21. - 17 - Serial No. 90302728 believe that this situation appropriately falls within the guidelines set forth in the Trademark Manual of Examining Procedure that “if an element in a mark could reasonably be characterized in more than one way, the examining attorney should accept the applicant’s selection of one characterization over the other in the description.” TMEP § 808.02. Accordingly, we accept the proposed amendment to the description of the mark that Applicant submitted on remand as accurate and as the operative description for purposes of this appeal.28 2. Applicant’s belated request for a conditional remand In its reply brief, Applicant asserts that the URLs identifying a handful of Internet webpages the Examining Attorney placed in the record over the five-year period of Applicant’s prosecution of this application are currently inoperative.29 Applicant claims that this makes the screenshots depicted by these webpages “irrelevant.”30 Applicant attaches what it says are screenshots of the pages reflected by these now- nonworking links to its reply brief and requests that, if its appeal is “refused,” the Board should remand the case to consider “this new evidence.”31 The request is denied. There are many problems with this argument and conditional remand request. First, the record should be complete before appeal, Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), so Applicant should not have attached “new evidence” to a brief to 28 The application continues to claim the colors blue and white as a feature of the mark. 29 See 14 TTABVUE 17-18. 30 Id. 31 Id. at 18. - 18 - Serial No. 90302728 the Board. Second, once a final decision issues on an appeal, prosecution will not be re-opened except to enter a disclaimer. Trademark Rule 2.142(g), 37 C.F.R. § 2.142(g). Third, we generally do not consider remand requests embedded in briefs; rather, they should be made by separate request, preferably before any briefs are filed. See, e.g., In re Ox Paperboard, LLC, No. 87847482, 2020 WL 4530517, at *2 (TTAB 2020). Fourth, requests for remand should be accompanied by a showing of good cause, see generally In re NextGen Mgmt., LLC, No. 88098031, 2023 WL 111145, at *2 (TTAB 2020), and Applicant has not even attempted to show good cause for a remand at this final stage of the appeal. See, e.g., Ox Paperboard, 2020 WL 4530517, at *3; In re Thomas White Int’l, Ltd., No. 77080379, 2013 WL 2951787, at *6 (TTAB 2013); In re Petroglyph Games, Inc., No. 78806413, 2009 WL 1759327, at *2 (TTAB 2009). Fifth, we question the premise of this argument. That a URL for a specific webpage in the record no longer works does not mean that the product or service depicted on the page is not currently depicted on another webpage or that it never existed or no longer is available in the market. Companies frequently change the graphics, content, and specific pagination of their websites. Applicant provides no evidence that the products and services depicted were never, or are no longer, available. Cf. In re Gen. Mills IP Holdings II, LLC, No. 86757390, 2017 WL 4082590, at *6 (TTAB 2017) (“Applicant has not adduced evidence to support its contention that some of the products shown are no longer offered; the burden of rebutting the Examining Attorney’s evidence rests on Applicant.”). And even if the product or service depicted in a webpage appended to an Office action in an appeal record were - 19 - Serial No. 90302728 no longer available, that does not make it “irrelevant” in a case of this type. As the Federal Circuit said when assessing inherent distinctiveness in Chippendales, “the Board appropriately considered evidence of the current situation as well as evidence of earlier uses, since earlier uses can shed light on the current situation.” 622 F.3d at 1355. We further note that there is no arbitrary time cut-off for evidence of third- party use in assessing acquired distinctiveness. While evidence of use older than five years old may be less probative than more recent evidence, see, e.g., Converse, Inc. v. ITC, 909 F.3d 1110, 1121 (Fed. Cir. 2018), none of the webpages about which Applicant complains were placed in the record more than five years ago. Still, we give no further consideration to some of these allegedly nonworking webpages as well as other webpages for other reasons. Several pages are stock photo licensing images or awning company websites, and appear to be mock-ups rather than depictions of actual retail businesses in the fields with which we are concerned. We also give no further consideration to photos of several foreign ice cream shops that use stripes because there is no corresponding evidence indicating the extent, if any, to which U.S. consumers have been exposed to these foreign uses. See In re Florists’ Transworld Delivery, Inc., No. 77590475, 2013 WL 2951796, at *1 (TTAB 2013); see generally In re Bayer AG, 488 F.3d 960, 969 (Fed. Cir. 2007). As to the remaining handful of objected-to webpages, they represent only a minute fraction of the uses of stripes by others for the relevant goods and services in the record, so even if we were to exclude them, our findings below would not change in any material sense. - 20 - Serial No. 90302728 B. Legal standards: Inherent distinctiveness and trade dress As defined in the Trademark Act, a “trademark” or “service mark” includes “any word, name, symbol, or device … used by a person … to identify and distinguish” their goods or services from those of others and “to indicate the source” of the goods or services. 15 U.S.C. § 1127. To perform the function of a mark to “identify and distinguish” among sources of a good or service and thus be protectable, a proposed mark must be “distinctive.” See, e.g., B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 142 (2015) (“The principle underlying trademark protection is that distinctive marks—words, names, symbols, and the like—can help distinguish a particular artisan’s goods from those of others.”) (citation omitted). “The general rule regarding distinctiveness has long been clear: An identifying mark is distinctive and capable of being protected if it either (1) is inherently distinctive or (2) has acquired distinctiveness ….” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769 (1992) (citations omitted); see also Del. & Hudson Canal Co. v. Clark, 80 U.S. 311, 323 (1871) (“The trade-mark must therefore be distinctive in its original signification, pointing to the origin of the article, or it must have become such by association.”). The standards for determining a proposed mark’s inherent distinctiveness depend on what kind of mark is at issue. Here, we are concerned with what the current description characterizes as “a repeating pattern of alternating blue and white vertical stripes” of equal width that “appears on a portion of the surface of the goods, on a portion of the packaging for the goods, on a portion of the building facades in - 21 - Serial No. 90302728 which the services are offered, and on displays, marketing and advertising materials associated with the services.” Thus, we are not concerned with a word mark.32 Rather, we are concerned here with trade dress. Product packaging trade dress may qualify as inherently distinctive, depending on the evidence.33 See, e.g., Two Pesos, 505 U.S. at 773-74 (restaurant décor); In re Chippendales USA, Inc., 622 F.3d 1346, 1351 (Fed. Cir. 2010) (design of a costume worn by a service provider, i.e., “trade dress” constituting the “packaging” of the service). Whether such trade dress is inherently distinctive requires an assessment of: [1] whether it was a ‘common’ basic shape or design, [2] whether it was [not] unique or unusual in the particular field, [3] whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods [or services] viewed by the public as a dress or ornamentation for the goods [or services], or [4] whether it was capable of creating a commercial impression distinct from the accompanying words. Chippendales, 622 F.3d at 1351 (quoting Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (CCPA 1977)). If the answer to any of the first three Seabrook inquiries as formulated in Chippendales is “yes,” the design is not inherently 32 If we were concerned with a word mark, we would evaluate inherent distinctiveness by determining whether the word(s) is arbitrary, fanciful, or suggestive, as applied to the goods or services (in which case it is inherently distinctive), or instead is merely descriptive or generic as to the goods or services (in which case it is not). See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 210-11 (2000); Two Pesos, 505 U.S. at 768. 33 In contrast, product design (i.e., the shape or configuration of a product or one or more components thereof)can constitute a type of trade dress if nonfunctional, see Trademark Act § 2(e)(5); TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 30 (2001), but can never be considered inherently distinctive. See Wal-Mart, 529 U.S. at 212, 216. - 22 - Serial No. 90302728 distinctive. Id.34 In In re Fantasia Distrib., Inc., No. 86185623, 2016 WL 5866950 (TTAB 2016), the Board adapted and applied this test to a design constituting a repeating ornamental pattern on goods. See id. at *2-3 (“To assess the potential inherent distinctiveness of a repeating pattern appearing on a product, such as the mark in this case, we follow Seabrook Foods …, adapting its factors to this context as appropriate ….”). Fantasia noted that marks constituting repeating patterns “frequently serve an ornamental function in various contexts to decorate goods, such that consumers would not be predisposed to equate the repeating patterns with source.” See id. at *2. Taking a cue from the decision in In re Soccer Sport Supply Co., 507 F.2d 1400 (CCPA 1975), the Board in Fantasia held that it did not “absolutely foreclose” the possibility that some proposed marks constituting repeating patterns could be inherently distinctive and “function as a mark.” 2016 WL 5866950, at *2. As Soccer Sport Supply put it: An ornamental design can be inherently distinctive if it is arbitrary and distinctive and if its principal function is to identify