Determining if Trademarks are Distintive

1538 WordsFeb 25, 20186 Pages Tests- In determining whether a trademark is inherently distinctive or not, the courts have come up with certain tests. The classic test for determining a trademark’s distinctiveness was outlined in Abercrombie & Fitch Co. v. Hunting World, Inc. The Abercrombie spectrum is one of the most accepted one in trade dress cases, and is has a universal acceptance in determining trade dresses distinctiveness. The prime factors that are considered in the court are the degree to which the trademark or trade dress is generic, descriptive, arbitrary, suggestive, or fanciful. Some courts include this widely accepted test into their own versions of tests. The first is known as the Seabrook test of 1977. In Seabrook, a frozen vegetable package “leaf” design was not believed to be an “obvious, certain, different” means of identifying “Seabrook Farms.” Instead, the court decided that the design was a decorative panel that served the purpose of background for the word port of the trademark. Bar-Well Foods was able to prove that Sea brook’s design was not uncommon in the frozen food market. The Seabrook test finds itself of great utility because it shows the importance of market context. Under this court will determine whether the trade dress is of a "common" basic shape or design, whether it is unique in nature or it is unusual in a particular field, and also whether it is a refinement of a commonly-adopted and a well-known form of ornamentation for a particular class of goods

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