The Appeal Board overruled examiner decision to negate inherent distinctiveness of a mark consisting of landscape painting.

Applied mark consists of a landscape painting depicting trees, pond and semicircular wooden bridge on the precincts of a shrine as shown below.

 2014-20654

Initial refusal by JPO examiner

At initial examination, examiner rejected the applied mark based on Article 3(1)(vi) of the Trademark Law since it is apparent that average consumers with an ordinary care of apparel in class 25 recognize the mark merely indicating landscape painting of a traditional shrine and are unlikely to conceive the mark as a source indicator by taking into account of circumstance that landscape design is commonly printed on apparels, T-shirts.

Article 3(1)(vi) – Requirements for trademark registration

Any trademark to be used in connection with goods or services pertaining to the business of an applicant may be registered, unless a trademark by which consumers are not able to recognize the goods or services as those pertaining to a business of a particular person.

Board decision 

In the meantime, the Appeal Board admitted inherent distinctiveness of the landscape painting on the grounds that mandatory survey failed to reveal a fact to convince the applied mark itself is used on T-shirt in general.

Thus, even if it becomes common to print landscape design on T-shirts admittedly, as long as the applied landscape has not been used on apparel too often, it is rather reasonable to conclude that the applied mark is deemed inherently distinctive as a source indicator of apparel. Consequently, the examiner decision should be overruled [Fufuku2015-7412].

 

In my opinion, it is doubtful whether average consumers at a glance of apparel are able to distinguish a landscape painting serving as source indicator from non-distinctive landscape paintings. Furthermore, with respect to the landscape in question, similar landscape can be seen often at historical shrines or temples in our country.

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