“Look-for” advertising refers to the use of advertising that directs the consumer to “look for” a particular graphic element/feature of a product and/or its packaging, and it is traditionally considered in connection with a determination of whether a trademark has acquired distinctiveness (specifically, in accordance with the “amount and manner of advertising” prong of the secondary meaning factors.)
Trademark filing parties and litigants, alike “often tout (and factfinders often also inquire about) ‘look-for’ advertising that explicitly highlights the specific feature for which protection is sought or ‘image’ advertising that features the trade dress” when trade dress is at issue, Alexandra Roberts stated in her paper, Mark Talk, and the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board (“TTAB”) has demonstrated that this type of advertising will go a long way to support an allegation of acquired distinctiveness. However, the TTAB has held that the lack of “look-for” advertising is not fatal to a claim of acquired distinctiveness, and is, instead, a factor to be considered.
In Mag Instrument Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1723 (2010), the TTAB held that it “and other courts have long taken notice of the importance of such advertisements in regard to configuration or product design marks,” and found the absence of “look for” advertisements to be damaging to an attempt to demonstrate acquired distinctiveness of proposed configuration mark. (“Perhaps most damaging to Mag Instrument’s attempt to demonstrate acquired distinctiveness of the proposed mark, is what is noticeably absent from the record,” the TTAB held, stating that “there is no evidence that Mag Instrument ever placed any ‘look for’ advertisements or otherwise made promotional efforts to create consumer association between the dual bands, or recharging rings, with the source of the flashlights.”)
In that case, the TTAB noted that while Mag Instrument’s “recharging rings were highlighted in several of [the company’s] advertisements,” it was “their utilitarian purpose or advantage that they give the MAG CHARGER flashlight that was being touted,” and not the allegedly distinctive elements of the product, namely, the dual band mark for which it was seeking registartion. As such, the TTAB held that it “could not conclude that such advertisements amount to an attempt to have consumers view the proposed mark as indicating the source of the goods.”