Now you see it; now you don’t (Wait, yes you do!)

TTAB affirms refusal of ‘4D’ as merely descriptive and as deceptively misdescriptive for amusement park attraction

For those familiar with the ins-and-outs of trademark law, navigating a hall of mirrors can be an appropriate metaphor. For one self-described “amazing” company applying for a trademark, navigating the halls of the USPTO turned out to be anything but simple.

In late February, the Trademark Trial and Appeal Board (TTAB) affirmed the USPTO’s denial of a trademark for the descriptive phrase 4D to Amazing Mazes, owner and operator of a theme-park type attraction in San Antonio that bills itself as begin on "the cutting edge of mirror maze design." (Someone enjoyed writing that. I certainly did!)

The Board also clarified a point that many applicants miss when arguing whether a proposed trademark is merely descriptive. A trademark does not have to tell a prospective consumer what the goods or services are. Instead, the issue is whether someone who knows what those goods or services are will understand the mark to convey information about them.

This is a key distinction. Often, clients tell me they want to apply for a descriptive sounding mark, and when I reply that I am concerned the mark will be refused as merely descriptive, they counter, “But just by reading the mark, you will not know what the goods are.”

Contributing Author

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Scott Slavick

Scott Slavick is a shareholder at Brinks Gilson & Lione, where his practice focuses primarily on trademark prosecution and trademark litigation. Scott maintains all aspects...

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