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  • A trademark functions as constructive notice to the public of registrant's ownership of a mark and that in order to make this constructive notice meaningful, the mark, as registered, must accurately reflect the way it is used in commerce so that someone who searches the registry for the mark, or a similar mark, will locate the registered mark. Thus, the Court found that "phantom" marks with missing elements cover too many combinations and permutations to allow an effective search of the register.
    • In re The Upper Deck Company, Serial No. 75/064,130, (TTAB 2001).
      • The Court went on to note the function of registration as constructive notice to the public of a registrant's ownership of a mark and that "[i]n order to make this constructive notice meaningful, the mark, as registered, must accurately reflect the way it is used in commerce so that someone who searches the registry for the mark, or a similar mark, will locate the registered mark." 51 USPQ2d at 1517. Thus, the Court found that "phantom" marks with missing elements cover too many combinations and permutations to allow an effective search of the register.
  • Case Finding: Constructive notice would be non-existent were applicant permitted to register a hologram with missing or changeable elements.
    • In re The Upper Deck Company, Serial No. 75/064,130, (TTAB 2001).
      • The constructive notice which the Court found fundamental to federal registration would be virtually non-existent were applicant permitted to register "a hologram" as applied to trading cards. While applicant may argue that there are no missing or changeable elements in its mark as described, there are clearly missing or changeable elements insofar as the images presented to the public are concerned.
In re The Upper Deck Company, Serial No. 75/064,130, (TTAB 2001) Grand Total
In re International Flavors & Fragrances Inc., 183 F.3d 1361, 1366, 51 USPQ2d 1513 (Fed. Cir. 1999) 1
Grand Total 1 1
No Statutes Listed.

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