How a Guitar-Shaped Hotel Rocked the Trademark World 🎸

If you are a fan of music, architecture, or trademarks, you might have heard of the Seminole Hard Rock Hotel & Casino in Hollywood, Florida. This hotel is not your typical lodging place. It is shaped like a giant guitar, complete with strings, frets, and a headstock. The hotel is part of the Hard Rock brand, owned by the Seminole Tribe of Florida, and it opened in 2019 after a $1.5 billion expansion project.

But the hotel is not only impressive for its design. It is also the subject of a recent trademark decision that set a new precedent for building designs as service marks. In May 2023, the Trademark Trial and Appeal Board (TTAB) ruled that the guitar-shaped hotel was inherently distinctive and eligible for trademark protection without showing secondary meaning.

Photo by Rob Olivera

If you are a fan of music, architecture, or trademarks, you might have heard of the Seminole Hard Rock Hotel & Casino in Hollywood, Florida. This hotel is not your typical lodging place. It is shaped like a giant guitar, complete with strings, frets, and a headstock. The hotel is part of the Hard Rock brand, owned by the Seminole Tribe of Florida, and it opened in 2019 after a $1.5 billion expansion project.

But the hotel is not only impressive for its design. It is also the subject of a recent trademark decision that set a new precedent for building designs as service marks. In May 2023, the Trademark Trial and Appeal Board (TTAB) ruled that the guitar-shaped hotel was inherently distinctive and eligible for trademark protection without showing secondary meaning.

This decision was a reversal of the examiner’s refusal to register the mark on the ground that it was nondistinctive trade dress. The examiner argued that consumers do not inherently perceive the exterior of an entire building as an immediate source indicator for the services provided inside the building.

The TTAB disagreed and found that the guitar design was unique and unusual in the field of hotels and casinos, and that consumers would immediately rely on it to differentiate the Seminole Tribe’s services from those of others. The TTAB analogized the case to In re Frankish Enterprises (TTAB 2015), where a monster truck was found sufficiently distinguishable from any other monster truck designs of record.

The TTAB also distinguished the case from another precedential opinion issued on the same day, In re Palacio Del Rio, where the TTAB affirmed the examiner’s refusal to register two building designs for a Hilton hotel in San Antonio, Texas. The TTAB found that the Hilton hotel’s designs, consisting of a pattern of alternating protruding and receding rectangular shapes created by the assembly of modular guest rooms, were not sufficiently distinctive to function as service marks. The TTAB noted that the Hilton hotel did not submit sufficient evidence to show that its designs were unique or recognizable in the hotel industry, and that its customer declarations were not persuasive.

The TTAB’s decisions in these two cases provide some guidance for determining whether building designs can be trademark protected as service marks. The key factors to consider are whether the design is common or unique in a particular field, whether it is a mere refinement or ornamentation of an existing form, and whether consumers would immediately rely on it to identify a source of services.

The guitar-shaped hotel case also shows that trademark protection is not limited to words, logos, or product packaging. It can extend to any design that serves to identify and distinguish a source of goods or services. As long as the design is inherently distinctive and not functional, it can be registered as a trademark without showing secondary meaning.

So next time you visit South Florida, you might want to check out the guitar-shaped hotel and marvel at its design and trademark status. Just don’t forget to rock on! 🤘

Read the full precedential decision through the TTAB Reading Room. Proceeding / App. No. 87890892