The USPTO refused registration of the mark FILAMENT TOWER for LED fixtures and light bulbs, concluding that the specimens of use differed materially from the drawing of the mark in the application. Applicant argued that FILAMENT TOWER, used in the phrase "Cree LED Filament Tower Technology" [see specimen below] will be perceived as a trademark. The Board rendered a split decision. How do you think this came out? In re Cree, Inc., Serial No. 85838153 (November 8, 2016) [not precedential].

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The issue of "mutilation" may arise when the mark as depicted in a trademark specimen does not match the mark depicted in the application drawing. The drawing must be a "substantially exact representation" of the mark as used. Rule 2.51(b). When "essential and integral subject matter" is missing from the drawing, the mark may not be registered. TMEP Section 807.12(d).

The issue before the Board was whether FILAMENT TOWER "is a complete mark or merely part of a larger mark. In other words, are 'Cree LED' and 'Technology' essential and integral subject matter missing from the drawing?"

The panel majority concluded that the mark shown in the application drawing, FILAMENT TOWER, is manifestly not a substantially exact representation of the mark that applicant is using. Does FILAMENT TOWER, as it appears on the specimens, create a separate and distinct commercial impression?

There is nothing to distinguish or separate FILAMENT TOWER from the rest of the phrase. There was no evidence showing applicant's use of FILAMENT TOWER as a stand-alone mark, which would have reinforced its significance as a mark separate from the rest of the phrase.

Despite the fact that Applicant, based on this record, is always using FILAMENT TOWER in conjunction with the phrase "Cree LED Filament Tower" or "Cree LED Filament Tower Technology," Applicant is asking consumers, who are merely interested in buying a light bulb, to parse "Cree LED Filament Tower" or "Cree LED Filament Tower Technology" into its component parts (i.e., the Cree house mark, the generic term LED, the trademark at issue Filament Tower, and Technology which is just a puff term to show the sophistication of the product) even though there is nothing in the way the phrase is displayed that would distinguish the components.

The fact that applicant sometimes uses the "TM" symbol after the word "Tower" did not help, since the symbol might equally be seen to apply to the phrase "Cree LED Filament Tower."

The panel majority concluded that the mark in the application is a mutilation of the mark as actually used, and therefore it affirmed the refusal.

Judge Ritchie, in dissent, opined that because Cree is applicant's trade name, and LED names the product, the term Filament Tower creates a separate and distinct commercial impression.