Intellectual Property Law

New Matter Fall 2021, Volume 46, Edition 3


Jane Shay Wald
Irell & Manella LLP

If We Can’t See Through Your Panties
Or Your Shoes Or Your Brassieres
Why Pick “Clear,” A Mark Suggesting
That Your Clothes Are Frail Veneers
Your Restriction To Exclude The Very
Feature You Extol
Won’t Resolve A Good Rejection For An
Instep, Strap Or Sole

The Board affirmed the Examining Attorney’s refusal to register Applicant’s proposed mark CLEAR for footwear, lingerie, and other items “excluding transparent goods,” because the mark was deceptively misdescriptive of the goods claimed. Applicant argued that CLEAR was “completely arbitrary, and that no consumer could be fooled into thinking Applicant’s footwear is transparent because the consumer must see the goods when purchasing them and will see that they are not transparent.”

The Examining Attorney submitted screenshots from Applicant’s website and third-party web sites showing the word CLEAR was used by competitors in connection with features and characteristics of shoes, such as transparent straps and see-through heels. Evidence from Steve Madden, Nordstrom, Zappos and others supported this point.

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