Siding with beauty queens the world over, the United States Trademark Trial and Appeal Board (“TTAB”) has rejected an application by online advertising giant Craigslist for a trade mark
over the iconic peace symbol.
The TTAB found that the symbol could not function as a trade mark because it was not capable of differentiating one trader’s goods from another’s. Amending the original application to include the colour purple did not help the Applicant’s cause either – this was still considered insufficient to give the universal symbol a distinctive character. The examining attorney cited the USPTO’s Refusal on Basis of Ornamentation Rule (appearing almost to have pre-empted the application) which provides specifically that “common expressions and symbols (eg, the peace symbol, “smiley face”, or the phrase “Have a Nice Day”) are normally not perceived as marks.”
The peace symbol itself has a long and illustrious history, and was originally designed by conscientious objector General Holton in 1958 for the British Campaign for Nuclear Disarmament. It was later adopted as emblematic of the 1960’s anti-war movement and has subsequently spanned the generations as a symbol of world peace.
While an attempt to claim monopolistic rights over such a well-known sign may seem unrealistic to some, it’s certainly not amongst the most tenuous trade mark applications filed in recent years, or the most ambitious. The decision also highlights the difficulty with the use of universally known symbols as trade marks. US retailer Wal-Mart recently discovered this to its detriment after it was denied protection for alleged infringement of its “well known smiley face mark” on similar grounds (see Smith v Wal-Mart Stores, Inc).
Such symbols tend to fall down at the “function as a trade mark” threshold because they are ill-equipped to function as a badge of origin. While they may be registrable where they are highly stylised or include other unique elements, these cases indicate that distinctive modifications will be required.
So how might Craigslist have fared in an Australian court?
There are currently around 40 registered trade marks on the Australian register which include the peace symbol, all of which contain additional elements or distinctive stylisation. Given the lack of inherent distinctiveness in universal symbols per se, in the absence of significant brand notoriety, such features would likely be necessary to meet the distinctiveness requirement under section 41 of the Trade Marks Act. For example:
|Trade Mark 426085 registered for Class: 2 Paints, varnishes, lacquers, stains, thinner and wood preservatives
|Trade Mark 1351154 registered for Class: 25 Hooded sweat shirts; long-sleeved shirts; open-necked shirts; shirts; shirts and short-sleeved shirts;
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|Trade Mark 1097010 registered for Class: 45 Personal services designed to meet the healing needs of individuals, including; psychotherapy, soul readings and healings, soul guidance, ghost-busting, house clearing and spiritual Feng Shui, conscious living programmes/seminars/workshops, psychic art, guides and angels, meditation, past lives, aura readings, individual spiritual mentoring, coaching and guidance
Regardless of jurisdiction, however, it is clear that the threshold remains high for traders wishing to secure rights in symbols that exist in the public domain.