In 2009, Fun Ranch Mega Development, Inc. (Fun Ranch) filed several trademark applications for a Facade of a Building for use on children’s entertainment and amusement center. The applications were rejected by the Examiner on the ground that the mark may not be registered because it does not function as a trademark and is not capable of distinguishing the goods or services.
On Appeal to the Director of Trademarks, Fun Ranch claimed that its mark is a unique design of a facade of a building that functions as a service mark. It argued that the mark is a visible sign that is distinctive of its business as proven by the fact that no other design similar to it belonging to a different recreational or amusement establishment was cited by the Examiner.
The Director of Trademarks denied the appeal, hence the case was elevated to the Director General of the Intellectual Property Office of the Philippines (IPOPHIL).
In its decision handed down in November 2013, the Director General stated that the function of a trademark is to point out distinctly the origin or ownership of the goods to which it is affixed; to secure to him, who has been instrumental in bringing into the market a superior article of merchandise, the fruit of his industry and skill; to assure the public that they are procuring the genuine article; to prevent fraud and imposition; and to protect the manufacturer against substitution and sale of an inferior and different article as his product. Significantly, a mark to be registered must be a visible sign capable of distinguishing the goods and services of an enterprise.
An examination of the subject applications shows the lack of a distinguishing feature that would make it a distinct “facade of a building” used by an enterprise for children’s entertainment and amusement center. This representation of a facade of a building does not function as an indicator of Fun Ranch’s business enterprise. In sum, Fun Ranch’s use of a unique facade of a building does not qualify for trademark registration.
This case demonstrates the importance of a trademark being a source identifier. Failure of a mark to function as such will result in disqualification for trademark registration.