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Bottom line: The Board found that a device mark shaped like a Baumkuchen having a heart-shaped through-hole is descriptive for Baumkuchen (pastry) in Class 30.

The applicant filed a trademark application for a device mark (not a 3D mark) of a Baumkuchen having a heart-shaped through-hole shown below designating Baumkuchen (pastry) in Class 30, and the mark was registered.  An opposition was filed against the registration on the ground that the mark is descriptive for the designated goods.

<Mark at issue>

The Board reviewed the case and found as follows:

- The opposed mark can be easily regarded as an image of a Baumkuchen having a heart-shaped through-hole.

- The Board found that several Baumkuchen having a heart-shaped hole were available in the market before the grant of the opposed mark.  And there are heart-shaped pastry cutters.  Further, there are a lot of doughnuts, cakes and cookies having a heart-shaped through-hole or heart-shaped parts, or being a heart-shaped themselves.  Accordingly, those in the confectionery industry will easily conceive of making a part of or whole Baumkuchen a heart shape.  A Baumkuchen having a heart-shaped hole is not a destinctive shape.

- Therefore, consumers and traders will merely recognize that the opposed mark is a shape of Baumkuchen.  The opposed mark does not function as a source identifier.

And so the Board revoked the registration.