We Do Not Spend Enough Time Thinking About Grotesque Trademarks

Introduction

I recently opened my web browser and was prompted to read an interesting article about gargoyles and grotesques. Candidly, I have not thought much about gargoyles since watching the Disney film, The Hunchback of Notre Dame. It occurred to me that we do not spend enough time thinking about grotesque figures in trademark law. I decided to write this blog post to combat that problem.

If your trademark contains a grotesque figure (there is a good chance that you don’t realize it) or a gargoyle, this post will assist you. The term “grotesque” is defined more broadly in trademark law than it is in architecture. Here is an article by renowned architect, Gregory J. Scott, discussing gargoyles and grotesques in architecture.

The article defines gargoyles as “carved figures of stone, with spouts designed to convey water from rooftops to the ground below.” Mr. Scott explains that gargoyles are both decorative and functional. Namely, they “prevent water from cascading down the sides of temples and other structures with pitched or flat roofs.”

“A grotesque or chimera, on the other hand, is a figure or sculpture that does not serve as a water spout and is purely decorative.” Mr. Scott clarifies that “[s]ome of the most famous gargoyles in history, such as those found on Notre Dame de Paris, are not gargoyles at all but grotesques.”

As discussed below, the term “grotesque” is used more broadly by the United States Patent and Trademark Office (USPTO).

Grotesque Figures in the USPTO Design Search Code Manual

This subject matter is relevant to trademark law because many trademarks contain grotesque figures. For example, the USPTO categorizes the M&M characters who “do exist” (e.g., Red, Yellow) as grotesque figures.

As regularly discussed here, the USPTO requires trademark applications to identify the mark, the goods/services, the owner of the trademark, etc., when an application is filed.

With respect to logos and other designs, the USPTO requires applicants to describe the mark. The USPTO later assigns design search codes outlined in the USPTO’s Design Search Code Manual. Often, the USPTO requires applicants to amend the description of the mark. With respect to the registered mark above, the USPTO has assigned multiple design search codes: “02.01.34 - Monsters (not robots); Other grotesque including men formed by plants or objects; 04.07.02 - Objects forming a person; Person formed by objects; 08.03.01 - Candy bars, (chocolate); Chips, (chocolate); Chocolate candies; Chocolate chips.” (emphasis added).

In relevant part, the USPTO uses two design search codes for grotesque men: “02.01.33    Grotesque men formed by letters, numbers, punctuation or geometric shapes” and “02.01.34 Other grotesque men including men formed by plants or objects.” The Design Search Code provides several examples for each code. The three examples immediately below are used for Code 02.01.33.

The geometric shape used in the Cingular logo (illustrated below) was also assigned Code 02.01.33.

U.S. Registration Number 2,871,582 (canceled).

The three examples immediately below are used for Code 02.01.34.

For reference, snowmen are not grotesque. They receive their own design search code, 02.01.35. In addition to the M&M character above, other well-known trademarks receiving this design search code are the Pillsbury Doughboy and Lefty the Hamburger Helper mascot:

U.S. Registration Numbers 2,607,725 and 4,432,646, respectively.

Gargoyles Are Not Assigned a Design Search Code Specific to “Gargoyles.”

Unlike grotesque men (and women), which receive one of two design search codes (02.01.33 and 02.01.34), gargoyles are not assigned a design search code unique to “gargoyles.” Instead, gargoyles are assigned one or more less specific search codes (e.g., “04.01.04 - Devils ; Horns, persons having”; “04.01.07 - Aliens ; Apollo (mythology) ; Athena (mythology) ; Caped characters (super heroes) ; Ghosts ; Mythological beings, superbeings, ghosts, aliens ; Super heroes ; Zeus (mythology)”; “04.05.25 – Other mythological or legendary animals”) and the description of the mark mentions the one or more gargoyles contained in the mark.

For example, U.S. Registration Number 6,971,429 for the mark

contains the following description of the mark: “The mark consists of the word “GARGOYLE” in a stylized font. Immediately below the word “GARGOYLE” is a rectangle design with the words “STEEL STRUCTURES” formed within the rectangle. Immediately following the words “GARGOYLE” and “STEEL STRUCTURES” is design of a gargoyle. The gargoyle design is mounted on three gear designs of assorted sizes stacked from largest to smallest.”

U.S. Registration Number 4,628,804 for the mark below:

The description of the mark states: “Color is not claimed as a feature of the mark. The mark consists of A crouching, winged gargoyle with horns, presented inside a circle, with the gargoyle holding a mug of beer and with its face in a grimace expressing disgust and wry amusement.”

Interestingly, some registrations contain one of the design search codes for grotesque men but describe the mark as a gargoyle.

For example, U.S. Trademark Application Serial Number 90/520,410 for the mark below:

(notice of allowance issued on February 22, 2022) was assigned, in relevant part, the design search code 02.01.34 for “ . . . other grotesque including men formed by plants or objects” and is described as “ . . . [t]he mark consists of the following: An animated blue gargoyle with a tail and wings, white horns, black eyes with white highlights, and a smiling black mouth showing white teeth and a pink tongue. The gargoyle is wearing black rectangular glasses, white gloves, a yellow dress with a pink and purple flower in the lower left corner, and red and white tennis shoes. The wings of the gargoyle are blue with a pink highlight in the center.”

Conclusion

Based on my experience, most trademark owners whose trademarks contain gargoyles or similar figures are not surprised when their mark is described as containing a gargoyle. By contrast, I suspect many trademark owners are surprised to receive either of the design search codes for “grotesque men.” In particular, we generally do not associate humanoid figures with the word grotesque, especially where those figures are friendly or whimsical.

I hope this blog post offers levity and gets you interested in grotesque marks. Perhaps you now think of the word “grotesque” differently than before. In a future blog post, we will describe how to reference the USPTO’s Design Search Code Manual. If you use a trademark (or intend to use one) that contains a gargoyle and/or grotesque figure, you can schedule a consultation with an experienced trademark attorney here.