will refuse to register the blue variation because it is identical to the preexisting "Baby Girl Fabric" design aside from the mere change in background color.
906.4 Typeface, Typefont, Lettering, Calligraphy, and Typographic Ornamentation
As a general rule, typeface, typefont, lettering, calligraphy, and typographic ornamentation are not registrable. 37 C.F.R. § 202.1(a), (e). These elements are mere variations of uncopyrightable letters or words, which in turn are the building blocks of expression. See id. The Office typically refuses claims based on individual alphabetic or numbering characters, sets or fonts of related characters, fanciful lettering and calligraphy, or other forms of typeface. This is true regardless of how novel and creative the shape and form of the typeface characters may be. A typeface character cannot be analogized to a work of art, because the creative aspects of the character (if any) cannot be separated from the utilitarian nature of that character.
Examples:
• Felicia Frost creates a font called "Pioneer Living" with embellishments that evoke historical "Wanted: Dead or Alive" posters. The registration specialist will refuse to register this font because it is a utilitarian method of writing without any separable elements that are copyrightable.
• Calliope Cash creates a textile fabric consisting of horizontally striped grass cloth with a pale blue background and characters painted in standard, unembellished Chinese calligraphy. The registration specialist will refuse to register this fabric design because the calligraphy consists of standard Chinese characters, and the mere addition of horizontal stripes or the choice of grass cloth does not add sufficient creativity to warrant registration.
There are some very limited cases where the Office may register some types of typeface, typefont, lettering, or calligraphy, such as the following:
• Pictorial or graphic elements that are used to decorate uncopyrightable characters may be registrable, provided that the elements are separable from the utilitarian form of the characters. Examples include original pictorial art that forms the entire body or shape of the typeface characters, such as a representation of an oak tree, a rose, or a giraffe that is depicted in the shape of a particular letter. In these cases, the representational art may be conceptually separable from the useful function of the typeface.
• Typeface ornamentation that is separable from the typeface characters is almost always an add-on to the beginning and/or ending of the characters. To the extent that such flourishes, swirls, vector ornaments, scrollwork, borders and frames, wreaths, and the like represent works of pictorial authorship in either their individual designs or patterned repetitions, they may be protected by copyright. However, the mere use of text effects (including chalk, popup papercraft, neon, beer
Chapter 900 : 13
12/22/2014
