News flash, last Friday the USPTO approved for publication a non-traditional trademark that I’ve seen in real life before. Let’s just say it is attached to one of our many remote control devices that I’ve had to dig out from under the sofa cushions more than a few times:

RokuPurpleTagThe claimed mark consists of “the configuration and material composition comprising a fabric tag in the color purple attached to the housing of the goods.” Note how the purple tag shown on the drawing doesn’t include the ROKU brand name:RokuDrawing

I’m thinking the USPTO should have required that the drawing to the right and the specimen of use match, and then the ROKU brand name appearing in white could have been shown in dotted lines to make clear it wasn’t being claimed as part of the non-traditional trademark. Do you trademark types out there agree?

The Examining Attorney at the USPTO assigned to the application asked Roku for the following information and documentation:

(1) A detailed explanation as to what purpose or function the “fabric tag” serves as used on the goods.

(2) Any available advertising, promotional or explanatory literature concerning the goods, particularly any material that relates specifically to the applied-for color mark and configuration.

(3) An explanation as to the use of the identified “fabric tag,” or similar tag, if any, extending from the housing of electronic goods, in applicant’s industry and any other similar use in applicant’s industry.

(4) Color photographs and color advertisements showing competitive goods in applicant’s industry using tags appended to housings for related goods.

(5) An explanation as to whether and how the goods’ function, purpose and cost are affected by the “fabric tag.”

Roku’s response was brief and to the point, but one might debate whether it covered all the requested points, information, and documentation:

“The Examining Attorney requested additional information and responses to inquiries regarding Applicant’s mark. Applicant responds as follows: 1. The purpose or function of the purple fabric tag is to be a label for the goods, just as a fabric tag is used as a label for articles of clothing. 2. Attached is a screen shot from Applicant’s website showing the mark as used on the goods. 3. To the best of Applicant’s knowledge and recollection, no others in Applicant’s industry use a fabric tag as a source identifying label or indicator of origin on the housing of these consumer electronic devices. Applicant is unaware of any goods in its industry that use fabric tags appended to the housings of the goods. 4. The function, purpose and cost of Applicant’s goods are unaffected by Applicant’s appending of a fabric tag on the goods. The fabric tags offer no particular functional or cost advantage of any kind. They merely serve as an inherently distinctive indicator of origin given the uniqueness of having a fabric tag appended to the housing of consumer electronic goods such as those produced by Applicant and those in its industry.”

Nevertheless, the brief response immediately led to approval of the claimed inherently distinctive mark for publication. I’ll have to say, it was more than a bit surprising to me that the response didn’t trigger a lack of distinctiveness refusal, at least as to the color purple, especially since the four prior registrations Roku was asked to claim ownership of were all non-distinctive Supplemental Registrations: 43296634329664, 4329666, and 4336488.

To the extent you, like me, thought about the apparent inspiration of Levi’s red pocket tab on jeans, David recognized that point, long ago, nearly five years ago now.

So, the claimed non-traditional color/fabric trademark has been around almost five years now, but why wasn’t a disclaimer of the color purple required unless Roku could prove up a partial acquired distinctiveness claim as to the color purple?