The Applicant alleged that infringing products imported from overseas copied its trade dress, but the evidence showed that the imports replicated other elements in addition to the red and white oval, so the TTAB could not conclude that the alleged copiers believed that consumers would perceive the applied-for mark as a source identifier on its own. Although the annual worldwide sales were substantial, the TTAB regarded this as being of limited probative value because the applied-for mark was always displayed as part of the composite mark with the words. Amount of sales and number of customers. The TTAB said that advertising expenditures, particularly related to any “look-for” advertising, would be important for such an inherently non-distinctive mark. Applicant did not submit any advertising figures because it did not advertise through television or print media. Applicant pointed to its use of a point of sale statement, “With their recognizable red-oval logo, Melissa and Doug put their names on every product they make.” But the TTAB said that the red oval was not the focus of this statement, there was no evidence as to when the use of this statement started and the statement appeared only as part of a larger text. However, the Applicant did not have exclusive use since there were at least 6 third-party registrations of marks having substantially similar red and white ovals with other word marks for some of the same goods. Nevertheless, the TTAB said this was some support that consumers might recognize the applied-for red and white oval design as a source identifier separate and apart from the word mark. However, Applicant had prominently and consistently displayed the applied-for mark on goods, signage, websites and social media posts only as part of its composite mark with the words MELISSA & DOUG. Annual sales for more than 16 years averaged more than 100 million units valued at more than $300 million.
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