On October 19, 2015 Scott Slavick's article, "Too Trulicity to be good?" was published in InsideCounsel and featured in the InsideCommentary Newsletter.

Mark Must Indicate Origin of Goods, Says Slavick
When it comes to trademark registration, the important question is not how readily a mark will be noticed. It's whether, when noticed, the mark will be understood by the customer as indicating the source of the goods.

So says Brinks' Scott Slavick in a recent article, "Too Trulicity To Be Good?," for InsideCounsel.com. Slavick describes the recent non-precedential decision in In re Eli Lilly and Co., in which the TTAB overturned a USPTO examiner's rejection of Lilly's application to register Trulicity for "pharmaceutical preparations for the treatment of diabetes," on the grounds that the mark was not prominently displayed on the provided specimen.

The TTAB was won over by Lilly's argument that the USPTO should not apply a mechanical test, but instead should consider the commercial impression made by the mark. The Board's decision is informative, notes Slavick, in signaling that the TTAB is flexible in determining trademark use, and will not be held to a rigid test in determining such use.

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