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Bottom line: The Board affirmed refusal of blister-pack design for pharmaceuticals.

The applicant sought registration of its blister-pack mark shown below for pharmaceutical preparations (note: the mark is 2D mark and not 3D mark).

The Examiner refused registration because the applied-for mark merely shows the shape of product package and does not function as a source identifier.

The applicant filed an appeal and argued that:

-       The mark can be seen as a simplified human face and it is inherently distinctive;

-       Without three-dimensional representation of the pill pocket, the mark will not be recognized as a blister pack of medicine;

-       The mark is at most suggestive;

-       The arched lines seen in the mark are not commonly used in the trade.

The Board found none of the applicant’s arguments to be persuasive.  Rather, the Board found that: 

-       Blister packages are commonly used in pharmaceutical industry, and the traders and consumers of pharmaceutical preparations will immediately recognize that the mark shows a blister pack containing 10 pills.

-       The mark includes a colored top section and arched lines attached to the bottom of a pair of circles, neither of which are inherently distinctive.  It is commonly used manner in the relevant industry to give coloring to the top section of blister packs or various design near the pill pockets. 

And the Board affirmed the refusal.

 

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