TTAB Affirms Failure-to-Function Refusal of Universal Peace Symbol

Craigslist, Inc. applied to register "a peace symbol" in the color purple, as a service mark for various on-line services, but the PTO refused registration under Sections 1, 2 and 45 of the Trademark Act on the ground that the purported mark is a universal symbol that cannot be registered without the addition  of distinctive matter. The Board agreed with the PTO. In re Craigslist, Inc., Serial Nos. 77956067; 77956069; 779560701 (May 31, 2013) [not precedential].

Evidence submitted by Examining Attorney Marc J. Leipzig demonstrated that the proposed mark "is the universal symbol that conveys the message of supporting peace," and that "the peace symbol is commonly used in virtually any context and always conveys the message of peace." Therefore  "without the addition of distinctive matter, the peace symbol cannot serve a source-indicating function and may not be appropriated by one entity."

Section 1202.17 of the TMEP deals with "universal symbols." A universal symbol fails to function as a mark "because it only imparts information, conveys an informational message, or provides ornamentation,” and its significance is based on the underlying message and not on any source-identifying function.

The Examining Attorney argued that the peace symbol is a "pervasive universally-recognized symbol (and has been for over fifty years) that would not be perceived as belonging to any one party or separating one person’s goods or services from those of another party.…" Instead it is "ubiquitous, non-distinctive icon, instantly recognizable to the general public in any context." The Board agreed.

Applicant Craigslist pointed to several third-party registrations for mark comprising the peace symbol, but in each case the mark included other distinctive elements. For example:

Craigslist also pointed to its prior registration of a peace symbol for downloadable software, arguing that its prior registration "demonstrates secondary source." The Board, however, ruled that the peace symbol is unregistrable and "cannot be considered as a secondary source or acquire distinctiveness based on its prior registration." The prior actions of the PTO in granting a registration are not binding on the Board, since each case must be decided on its own merits.

Addition of the color purple did not help Craigslist because the evidence showed the peace symbol used in the color purple in a variety of contexts. In short "the overall impact and impression of the universally-known peace symbol remains unchanged."

Because the Board found that the standard peace symbol does not function as a mark and is unregistrable, it was unnecessary to address Craigslist's claim of acquired distinctiveness.

And so the Board affirmed the refusal.

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Text Copyright John L. Welch 2013.

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