IP Law Daily, TRADEMARK—TTAB: Composite mark for first aid kits containing Greek cross and red rectangle refused registration, (Nov 20, 2024)

By Saurabh Kashyap, B.A., LL.B., LL.M.

Board found the mark merely informational and incapable of functioning as a source identifier.

In a non-precedential decision, the Trademark Trial and Appeal Board (TTAB) affirmed a Trademark Examining Attorney’s refusal to register a proposed composite mark consisting of a white Greek cross within a green square adjacent to a red rectangle containing the word “SURVIVAL” in stylized white letters covering first aid kits. The Board held that the mark, in its entirety, was merely informational and, thus, failed to function as a trademark identifying the source of the goods it covered (In re Tyrrells Administration Pty Ltd., No. 97002256 (TTAB Nov. 15, 2024)).

Background. The applicant, Tyrrells Administration Pty Ltd., applied to register the proposed composite mark under International Class 5 for “first aid kits,” claiming first use on August 30, 2019. The application described the mark’s design and claimed the colors red, white, and green as features. While the applicant disclaimed “SURVIVAL,” it argued that the overall combination of elements in the mark rendered it distinctive. The Trademark Examining Attorney refused registration under Trademark Act Sections 1, 2, and 45, finding that the proposed mark, when used on or in connection with the applicant’s goods, would be perceived by consumers as merely conveying information about the applicant's goods. Thus, it did not function as a trademark to indicate the source of the applicant’s goods. After the Trademark Examining Attorney issued a final refusal, the applicant appealed and requested reconsideration. When the Trademark Examining Attorney denied the request for reconsideration, the appeal resumed.

Universal symbol. The Board first addressed the Greek cross within the green square, characterizing it as a "universal symbol" for first aid. Evidence from industry standards and online resources demonstrated that this symbol was widely used to denote first aid and emergency medical services. Its placement in the proposed mark mirrored its standard use in the field, offering no unique stylization or source-identifying quality. Citing In re Peace Love World Live, LLC (2018 TTAB LEXIS 220), the Board held that universal symbols convey an informational message rather than identifying the origin of goods when used in their typical context.

Generic wording. The TTAB applied the two-part test from H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987 (Fed. Cir. 1986), to evaluate whether the term “SURVIVAL” was generic for first aid kits. First, the Board identified the genus of goods as “first aid kits,” aligning with the applicant’s identification of goods in its application. Second, it assessed how the relevant public—potential purchasers of first aid kits—understood the term. Evidence from marketplace use demonstrated that “SURVIVAL” was widely used to describe first aid kits tailored for emergency or survival purposes. The Board concluded that the term was generic, as it primarily referred to a category of goods within the genus, thereby failing to function as a source identifier.

Non-distinctive background. The red rectangle serving as a background for “SURVIVAL” was analyzed next. The Board determined it was a non-distinctive carrier element, lacking any stylization or unique features that might create a commercial impression. The color red, common in the first aid and medical field, further diminished its distinctiveness. Referencing In re Dixie Restaurants Inc., 105 F.3d 1405 (Fed. Cir. 1997), the Board concluded that the rectangle functioned merely as a frame for the generic text and did not enhance the mark’s source-identifying potential.

Combined effect of elements. The applicant argued that the combination of the Greek cross, the word "SURVIVAL," and the red rectangle created a distinctive whole. The Board rejected this argument, finding that the cumulative effect of non-distinctive elements did not result in a mark capable of functioning as a trademark. Citing In re Hotels.com, L.P., 573 F.3d 1300 (Fed. Cir. 2009), it emphasized that the mark, when viewed as a whole, remained merely informational and descriptive of the goods, offering no indication of their source.

Prior registrations. Tyrrells presented third-party registrations for marks containing Greek crosses to support its case. However, the Board dismissed this evidence, emphasizing that trademark eligibility is determined on a case-by-case basis. Unlike the proposed mark, most cited registrations involved unique stylization or were for unrelated goods. Drawing from In re Nett Designs, Inc., 236 F.3d 1339 (Fed. Cir. 2001), the Board reaffirmed that prior decisions by Examining Attorneys do not bind the USPTO or the TTAB.

Public perception. The TTAB underscored that the relevant public—potential purchasers of first aid kits—would perceive the proposed mark as a generic description of the product's purpose rather than a source identifier. Including a universal symbol, generic wording, and a non-distinctive background collectively failed to meet the statutory requirements for trademark registration under Sections 1, 2, and 45.

The Board, therefore, affirmed the refusal to register.

The Case is Serial No. 97002256.

Judge: Lavache, R.

Attorneys: Charles M. Landrum III (Thomas Horstemeyer, LLP) for Tyrrells Administration Pty Ltd. Anna Oakes for the USPTO.

Companies: Tyrrells Administration Pty Ltd.

Cases: Trademark USPTO