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Bottom line: The Board found that a melon device mark is not descriptive for melon-based soft drinks in Class 32.

The applicant filed a trademark application for a device mark (not a 3D mark) composed of a picture of a melon with a scoop of ice cream, spoon and straw shown below designating melon-based soft drinks in Class 32.   The application was refused on the ground that the applied-for mark is descriptive for the designated goods.

<Applied-for mark>

The Examiner noted that the applied-for mark just represents a shape of the designated goods in a common manner because of the following reasons:

- The mark is composed of a melon cut off with its top, a scoop of ice cream, a spoon and a straw.  In the dessert food industry, a cup made from a top-cut melon with a spoon and straw is often seen.  Accordingly, the mark is not so characteristic.

The Board reviewed the case and found as follows:

- The applied-for mark is represented in a graphic manner.
- Melon is commonly used as a raw material of soft drink.  So, consumers and traders will recognize the melon of the mark as the indication of the material of the designated goods.  However, they will not recognize the whole mark as a general shape of the designated goods.
- Also, no proof was found that the mark is commonly used as a shape of goods in the relevant industry.  Therefore, the mark may function as a source identifier.

And so the Board reversed the Examiner’s decision and granted registration of the applied-for mark.