Ralph’s Famous Italian Ices may be closely associated in customers’ minds with frozen treats, summer weather, and blue-and-white storefronts. But familiarity with a business is not the same thing as trademark recognition of every element of its décor.
In a 66-page precedential opinion, the Trademark Trial and Appeal Board affirmed the refusal to register Ralph’s repeating pattern of alternating blue-and-white vertical stripes for frozen confections, beverages, restaurant franchising, and restaurant services. Although Ralph’s prevailed on two preliminary issues—including the acceptability of its Class 35 specimen—the Board concluded that the stripe pattern was common ornamentation and that Ralph’s had not established that consumers regarded the pattern itself as identifying a single source.
Serial No.: 90302728
Opinion mailed: June 25, 2026
Status: Precedential; the sixth TTAB opinion designated precedential in 2026
The Proposed Mark
Ralph’s sought registration of a repeating pattern of alternating blue-and-white vertical stripes. The final description accepted by the Board stated that the stripes were of equal width and proportion and appeared on portions of the goods, product packaging, building facades, displays, and marketing and advertising materials.
The application covered six international classes:
- Shakes and milkshakes in Class 29;
- Frozen confections, Italian ices, coffee beverages, and related frozen drinks in Class 30;
- Fruit drinks in Class 32;
- Alcoholic beverages other than beer and hard seltzer in Class 33;
- Restaurant-franchising and business-management-assistance services in Class 35; and
- Restaurant and food-and-drink services in Class 43.
Ralph’s filed the application in November 2020 based on use in commerce and claimed use dating back to at least 2004. The examining attorney refused registration because the stripes constituted ornamental matter that was not inherently distinctive and because Ralph’s had not proven acquired distinctiveness under Section 2(f) of the Trademark Act. The examining attorney also maintained a separate specimen refusal for the Class 35 franchising services.
Ralph’s Wins the Class 35 Specimen Issue
Ralph’s first victory concerned its specimen for restaurant-franchising services.
The company submitted screenshots from a franchise portal, including a login page for the “Ralph’s Order Entry System.” Ralph’s explained that franchisees used the portal to order approved food and supplies as part of the company’s franchise-management services.
One screenshot was so small and blurry that the Board found it illegible. The login-page screenshot, however, was readable.
The examining attorney argued that the specimen did not create a sufficiently direct association between the stripe pattern and Ralph’s identified franchising services. The Board disagreed. It emphasized that a specimen must be evaluated together with an applicant’s consistent explanation of how the specimen is used.
The Board also took a practical view of restaurant franchising. Maintaining uniform products, quality standards, and approved supply channels is central to a franchise system. Providing franchisees with an online ordering system for approved products and supplies therefore constituted part of the rendering of Ralph’s business-management-assistance services.
Viewed together, the login page and Ralph’s declaration established the required connection between the proposed mark and the Class 35 services. The Board reversed the specimen refusal.
The Board Accepts Ralph’s Amended Description
Ralph’s also prevailed in a dispute over the written description of the proposed mark.
The company sought to amend the description to specify that the blue and white stripes were “of equal width and proportion.” The examining attorney rejected the amendment, concluding that the blue stripes appeared narrower than the white stripes.
Ralph’s attributed the perceived difference to an optical illusion. Neither side offered evidence beyond the drawing itself.
The Board found both interpretations reasonable. It relied on guidance in TMEP Section 808.02 stating that, when an element reasonably can be characterized in more than one way, the examining attorney generally should accept the applicant’s chosen characterization. The Board therefore accepted the amended description.
That procedural victory clarified what Ralph’s was attempting to register. It did not make the pattern distinctive.
Common Décor Is Not Inherently Distinctive Trade Dress
The central issue was whether consumers would immediately perceive the blue-and-white stripes as a source identifier.
Product-packaging and restaurant trade dress can be inherently distinctive. Under the Seabrook framework, however, a design is not inherently distinctive when it is a common basic design, is not unique or unusual in the relevant field, or is merely a refinement of a commonly adopted form of ornamentation.
Because Ralph’s claimed a repeating ornamental pattern, the Board also applied the analysis developed in In re Fantasia Distribution, Inc. That analysis considers the nature of the goods, industry ornamentation practices, the nature and commonness of the pattern, the manner in which the pattern appears, and the commercial impression created by the design.
The Board conducted a class-by-class analysis—and the third-party evidence was decisive.
For shakes, frozen confections, Italian ices, and restaurant services, the record contained numerous examples of businesses using blue-and-white stripes or similar alternating-color stripe patterns. The evidence included ice cream parlors, frozen-dessert shops, restaurants, beverage sellers, and packaged-product companies.
Among the businesses appearing in the record were Bridgehampton Candy Kitchen, Uncle Louie G’s, Taggart’s Ice Cream, Ye Ole Fashioned Ice Cream & Sandwich Café, Dreamette, Ben & Jerry’s, Blue Mountain Beach Creamery, White Castle, Portillo’s, Rita’s, and many others.
The Board concluded that Ralph’s used its stripes in the same customary manner as those other businesses: as decoration on storefronts, awnings, packaging, menus, and promotional materials. At most, the pattern was a variation or refinement of a common decorative practice.
The evidence was less extensive for fruit drinks and alcoholic beverages. That did not save the application. Stripes are a rudimentary form of ornamentation, the Board reasoned, and even a relatively limited number of similar uses could demonstrate that consumers were unlikely to perceive Ralph’s version as automatically signaling a brand.
The Class 35 franchising services met the same fate. Uncle Louie G’s used blue-and-white stripes while promoting franchise opportunities in the Italian-ice field. More broadly, restaurant franchising commonly involves standardized décor and appearance. The extensive evidence of striped restaurant and frozen-dessert storefronts was therefore relevant to the distinctiveness of Ralph’s claimed trade dress for franchising services.
The Board ultimately found that consumers would view the pattern as “mere ornamentation” in connection with every identified class.
Twenty Years and $110 Million in Sales Were Not Enough
Ralph’s alternatively argued that, even if the stripes were not inherently distinctive, they had acquired distinctiveness under Section 2(f).
Its evidence was substantial in certain respects. Ralph’s claimed:
- Approximately 20 years of continuous use;
- More than $110 million in revenue from 2004 through 2024;
- More than one million customers;
- Approximately $2 million in advertising expenditures; and
- Unsolicited media coverage discussing the business.
Those numbers might appear impressive. The problem was that they did not answer the controlling question: did consumers recognize the blue-and-white stripe pattern itself as identifying Ralph’s?
The Board found several weaknesses. First, Ralph’s submitted no consumer survey and no testimony from purchasers showing that consumers associated the stripes with a single source. Survey evidence is not mandatory, but its absence was significant given the commonness of the design and the breadth of third-party use.
Second, the revenue and customer figures were aggregated across all of Ralph’s goods and services. They did not show how much business related to each class, nor did they place Ralph’s performance in context against competitors.
Third, the record suggested that the stripes generally appeared together with Ralph’s much more prominent word marks. Strong sales made under a composite presentation do not necessarily establish that consumers recognize one background design, standing alone, as a trademark.
Fourth, the media coverage did not focus on the stripes. Many articles referred to Ralph’s by name without mentioning the pattern. Some photographs showed the stripes alongside the company’s word marks, while other articles did not show the claimed trade dress at all.
The articles may have demonstrated public interest in Ralph’s business, but they did not show recognition of blue-and-white stripes as an independent source identifier.
Merely Showing the Stripes Was Not “Look-For” Advertising
Ralph’s also characterized several advertisements and promotional images as “look-for” advertising. The Board rejected that characterization.
Effective look-for advertising expressly instructs consumers to notice a particular nontraditional feature as an indication of source—language such as “look for the red label” or “recognize our product by the colored ring.” Simply displaying a storefront, package, or menu containing the claimed design does not train consumers to treat that feature as a trademark.
Ralph’s examples depicted the stripe pattern, but they did not tell consumers to rely on the stripes to identify Ralph’s. Indeed, the company’s word marks were prominently featured in the same materials.
After reviewing the extensive prosecution record, the Board stated that it found no evidence that Ralph’s had engaged in genuine look-for advertising for the stripe pattern.
That conclusion was especially damaging because Ralph’s was seeking exclusive rights in a basic design that consumers ordinarily would perceive as decorative. The more commonplace the claimed trade dress, the greater the need for deliberate advertising that separates the design from the applicant’s conventional marks and teaches consumers that the design itself identifies source.
Third-Party Use Became a “Nearly Insurmountable Hurdle”
The most serious obstacle to Ralph’s Section 2(f) claim was the widespread use of similar stripes by others.
Acquired distinctiveness ordinarily requires substantially exclusive use. A design cannot reliably distinguish one company from another when consumers repeatedly encounter the same or highly similar design from unrelated sources.
Ralph’s attempted to recast the third-party evidence as proof of intentional copying. According to the company, others were using stripes because Ralph’s trade dress had become distinctive.
The Board found no evidence supporting that theory. Ralph’s did not submit proof that the third parties knew of its claimed rights, intended to trade on its goodwill, had been accused successfully of infringement, or had been found liable by a court. Merely labeling third-party uses “infringing” could not convert marketplace evidence against distinctiveness into evidence supporting it.
The Board also noted the contradiction in Ralph’s position: Ralph’s treated its own use of stripes as source-identifying while dismissing nearly identical uses by others as inconsequential decoration.
The multiple examples of others in Ralph’s fields using the same or similar stripes in the same ornamental fashion created what the Board described as a “nearly insurmountable hurdle” to the Section 2(f) claim.
The Board concluded that Ralph’s had “not come anywhere close” to proving acquired distinctiveness.
Lessons for Trade Dress Applicants
Long use does not equal trademark significance
Twenty years of use may establish duration, but duration alone does not establish consumer perception. The applicant must connect its commercial history to recognition of the precise feature claimed as a mark.
Sales figures need context
Revenue, customers, and advertising expenditures carry more weight when they are separated by relevant goods or services, compared with competitors, and tied specifically to use of the proposed mark.
Build look-for advertising before filing
Businesses seeking rights in trade dress should expressly teach consumers to notice the feature. Advertising should identify the claimed design, explain its source-identifying significance, and avoid relying exclusively on a conventional word mark or logo.
Investigate third-party use early
A trade dress applicant should evaluate the marketplace before investing heavily in a registration strategy. A crowded field may defeat inherent distinctiveness, undermine substantially exclusive use, and dramatically increase the evidence required under Section 2(f).
Explain service specimens carefully
The specimen portion of the decision is favorable to applicants. A specimen used in performing a service may be acceptable even when its connection to the identification is not immediately obvious, particularly when a declaration provides a credible and consistent explanation. Clear, legible specimens remain essential.
The Bottom Line
Ralph’s succeeded in showing that its franchise ordering portal was a valid service-mark specimen. It also persuaded the Board to accept its preferred description of the stripe pattern.
But those victories did not answer the decisive trademark question.
The record showed that alternating stripes—particularly blue-and-white stripes—were commonly used as decoration by frozen-dessert shops, beverage sellers, restaurants, and related businesses. Ralph’s commercial success demonstrated the strength of the Ralph’s business, but it did not demonstrate that consumers regarded the stripes alone as identifying that business.
The Board therefore affirmed the refusal to register the proposed trade dress in Classes 29, 30, 32, 33, 35, and 43.