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Bottom line: The Board found that the 3D mark for a trade dress of a gas station is descriptive for gasoline and liquid fuels in Class 4, retail or wholesale services for fuel in Class 35 and repair and maintenance of motor vehicles in Class 37.

The applicant filed a trademark application for a 3D mark for a trade dress of a gas station shown below designating gasoline, liquid fuels, etc. in Class 4, retail or wholesale services for fuel in Class 35 and repair and maintenance of motor vehicles, etc. in Class 37.   The application was refused on the ground that the applied-for mark is descriptive for the designated goods and services.

<Applied-for mark>

The Examiner noted that the applied-for mark merely represents a facility for selling the designated goods or a place providing the designated services because consumers will immediately find it as a trade dress of a gas station.  And the Examiner recognized that the mark falls under Section 3-1-3 in the Trademark Act.  The case was brought to the Appeal Board.

The Board reviewed the case and found as follows:

- The applied-for mark is a configuration of a gas station, and the edge of the roofs, the signs, and fuel suppliers are painted in blue.  The detail of the mark is not clearly recognizable.
- Blue coloring on buildings and facilities is commonly used for aesthetic purpose.
- The applied-for mark is merely represented in a common manner and does not function as a source identifier.

The applicant owns the 3D mark (Reg. No. 5513676, shown below) for the design of a fuel, supplier.

<Registered 3D mark>

The applicant contested that the applied-for mark contains this registered mark as one of the elements and that the applied-for mark as a whole functions as a source identifier owing to depiction of the fuel supplier (registered mark), blue color and figure of the signs and blue color on the roof edge.  However the Board found that the images of the fuel suppliers are too small and indistinct and that the signs and the blue edged roof merely are for aesthetic purpose.  Accordingly, the Board concluded that the applied-for mark does not function as a source identifier.

And so the Board affirmed the examiner’s refusal.