In Re Clarke

17 U.S.P.Q.2d 1238 (1990)

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Nature of the Case

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Facts

P applied for a mark for 'sewing thread and embroidery yarn' based on a unique scent. The Examining Attorney has refused registration on the ground that the mark does not function as a trademark because it does not identify or distinguish P's goods from those of others. The Examining Attorney observed that a fragrance mark is analogous to other forms of product ornamentation in that it is not the type of matter which consumers would tend to perceive as an indication of origin. The Examining Attorney also cited the competitive need for free access to pleasant scents or fragrances. P appealed. P posits that no other company has ever offered scented embroidery yarn or thread. P has also placed advertisements that her company is the source of such scented products. P has received a great number of favorable and positive responses to her unique product and that, to the best of her knowledge, customers, dealers, and distributors throughout the embroidery field recognize applicant as the source of scented embroidery yarn and thread. P also contends that others are free to adopt different scents for their products if they so wish.