Merely Ornamental

You sell CONTRAST brand T-shirts. The shirts are in bright colors with contrasting overstitching: Orange shirts with blue overstitching; red shirts with green stitching; purple shirts with yellow thread. Can you get a trademark registration to protect that feature?

Probably not, at least not right away, because it’s “merely . . . an ornamental or decorative feature on the goods.” When people see your T-shirts, they might think, “Oh that looks nice,” but they don’t think “Oh, that’s a CONTRAST brand shirt.”

If your T-shirts catch on, there might come a day when people see the T-shirts with colorful stitching and think of your company. At that point, the stitching becomes a trademark.

Levi Strauss® has a registered trademark for a “double arcuate[i] designs of orange color displayed on the hip pockets . . ..” That stitching was once “merely ornamental” but now it functions as a trademark.

Non-ornamental
Ornamental

A refusal for “merely ornamental” happens a lot when people try to register an image or words on a shirt. The Trademark Office is more likely to accept an application for a trademark on a shirt when it’s a “small, neat, and discrete wording/design located on the pocket or breast portion of a garment” rather than when it’s emblazoned across the front of a shirt.

There’s no bright line between being “merely ornamental” and “creating a commercial impression” but it means the difference between being a trademark and not being a trademark.


[i] I used this example only so I could use the word “arcuate” which is a really wondrous word that means “shaped like a bow.”

One thought on “Merely Ornamental

  1. Pingback: Specimens – Part II | Bee Blog

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