In a precedential decision, the Trademark Trial and Appeal Board (“Board”) allowed registration of the following design mark for “Casinos,” in International Class 41, and “Hotel, restaurant, and bar services,” in International Class 43 on behalf of the Seminole Tribe of Florida (“Applicant”):

In re Seminole Tribe of Fla., 2023 TTAB LEXIS 184 (TTAB May 25, 2023). The design mark was described as “consisting of a three-dimensional building in the shape of a guitar.”

Ultimately, the Examining Attorney refused to register the design mark “on the ground that it is nondistinctive trade dress, reasoning that ‘[b]ecause buildings come in a vast array of shapes and sizes, and are used to provide virtually all types of goods and services, consumers do not inherently perceive the exterior of an entire building as an immediate, inherent source indicator for the services provided inside the building.’” However, the Examining Attorney allowed the design mark to register on acquired distinctiveness grounds. Applicant appealed, arguing that the design mark is inherently distinctive.

“The critical inquiry in determining whether a designation functions as a mark is how the designation would be perceived by the relevant public. . . . A mark is inherently distinctive if its intrinsic nature serves to identify a particular source.” The Board provided lengthy summations of previous Supreme Court, Federal Circuit, and Board opinions dealing with trade dress, including Two Pesos, Inc. v. Taco Cabana, Inc., Wal-Mart Stores v. Samara Bros.,  In re Chippendales USA, Inc., and In re Frankish Enters. Ltd. Based on its reading of these opinions, the Board determined that “it is appropriate for us to consider whether a consumer would immediately rely on Applicant’s Guitar Design mark to differentiate Applicant’s Services from the services of others who offer casinos or hotel, restaurant, and bar services, as well as to consider the entire trade dress of Applicant’s Guitar Design mark as shown and described above.”

Applying this test, the Board focused on “whether the trade dress is a ‘common’ basic shape or design; whether it is unique or unusual in a particular field; or whether it is a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods.” The Board found that the guitar design was “unique” for a building, and, therefore, it “is of a type that consumers would immediately rely on to differentiate Applicant’s Services from casinos or hotel, restaurant, and bar services offered by others, and that it therefore constitutes inherently distinctive trade dress.” The mark therefore proceeded to registration without a claim of acquired distinctiveness.