UnIP (UnIntellectual Property): Trademark for Design Mark
The Trademark Trial and Appeal Board (TTAB) affirmed a refusal to register a design mark described as “a single line in a wave design that is applied to the front of a garment. The dotted lies showing the outline of a garment does not form part of the mark, but is used only to show placement of the mark.” The TTABlog sums up the decision best, and I will not attempt to do it any greater justice than Mr. Welch has already.
However, the decision did cause me to pause and think more about it. Being married to a regular purchaser of the lululemon brand and overhearing people in my workout classes comment about “so and so” wearing lululemon having only seen the design, I am not so sure that the design is not inherently distinctive. That said, it appears one of the fatal flaws here was that the design on the clothing does not necessarily match their common design, as shown as part of their first registered trademark. I would not foreclose reapplication after a longer passage of time or the collection of stronger evidence to establish acquired distinctiveness. Nevertheless, it is clear that lululemon is aggressive in their pursuit of trademark registrations, including other designs.