Key Head Design Registered Without Look-For Advertising
promotion. According of the opinion by Administrative Trademark Judge Hairston:
After reviewing applicant’s evidence of record, we recognize that there is no
“look for” advertising or promotion of the octagonal key head design. In certain
cases, the Board has been critical of an applicant’s claim of acquired distinctiveness when the product design sought to be registered merely appears in advertising materials and there is no evidence of the promotion of the product design in such materials. See e.g., In re Edward Ski Products, Inc., 49 USPQ2d 201 (TTAB 1999) [no evidence that the configuration of a ski mask promoted as an indication of origin]; and In re Pingel Enterprises Inc., 46 USPQ2d 1811 (TTAB 1988) [no advertising or promotion of trademark significance of the product configuration]. In this case, however, the absence of “look for” advertising or promotion does not mean that consumers do not recognize the design as applicant’s trademark. Here, applicant’s marketing manager, Ms. Drey, has stated that it is an industry practice for manufacturers of door locksets to use different and identifiable key head designs for their locksets and keys. We note that this Board has previously considered industry practices in acknowledging that colors operate as source indicators for wire rope. See e.g., Amsted Industries Inc. v. West Coast Rope & Rigging Inc., 2 USPQ2d 1755, 1757 (TTAB 1987) [“A rather unusual aspect of how color is generally applied to one or more strands of wire rope as an industry practice was the subject of considerable testimony and evidence. Even though the third-party registrations attached to applicant’s brief are not in evidence, supra, note 4, there is no doubt, on opposer’s record, that a number of suppliers of wire rope utilize one or more distinctively colored wire rope strands to serve as indicators of origin and have registered these indicia as trademarks”) and Wire Rope Corporation of America, Inc. v. Secalt S.A., 196 USPQ 312, 315 (TTAB 1977) [“Insofar as the nature of the use of colored strands in the wire products field is concerned, it is not disputed that it is the custom, as previously indicated, for manufacturers to use different colors for application to their wire rope or cable for identification purposes and that purchasers do recognize the individual colors as source indicia”). Here, applicant has submitted photographs of ten key heads from other manufacturers of door locksets that are different from applicant’s key head design and five third-party registrations for marks consisting of key head designs for door hardware. In other words, the evidence in this case shows that it is common for manufacturers of door hardware to use key head designs as source indicators. This makes it all the more likely that consumers would perceive applicant’s applied-for mark as a trademark. Cf. In re Upper Deck Co., 59 USPQ2d 1688, 1693 (TTAB 2001) [“[T]he common use of holograms for nontrademark purposes means that consumers would be less likely to perceive applicant’s use of holograms as trademarks”]. The record also shows that applicant’s octagonal key head design is unlike the key head designs
used by other manufacturers of door locksets. Compare In re Gibson Guitar Corp., 61 USPQ2d 1948 (TTAB 2001) [Applicant failed to meet its high evidentiary burden where its guitar configuration was extremely similar to those used by other guitar manufacturers]. In short, the absence of “look for” advertising or promotion of applicant’s key head design is not a critical factor in this case. Further, in this case, there is competent evidence of consumer recognition of the octagonal key head design as a trademark. The language in both the retailer and the ultimate consumer declarations is clear as to what is understood to represent applicant’s applied-for mark. We disagree with the examining attorney’s assessment that the eight retailer declarations are biased and therefore entitled to little weight. There is simply no evidence to suggest that these retailers were predisposed to say that applicant’s goods are identified by the octagonal key head design. Finally, while the two declarations from the ultimate consumers of applicant’s goods are not an
overwhelming number, we must consider applicant’s evidence in its entirety.
Based on this record in its totality, and for the reasons discussed above with particular consideration given to the industry practice, we find that applicant has established a prima facie case that the applied-for mark has become recognized as indicating applicant and the metal door hardware it sells.