II. ADMINISTRATIVE RECORD
A. Initial Application and the Office’s Refusal to Register
On December 7, 2004, the Office received from you a Form VA application on behalf of your client Best Western International, Inc. to register a graphic design. In a letter dated February 4, 2005, Visual Arts Section Examiner Kathryn Sukites refused registration of this work because she concluded it lacks the authorship necessary to support a copyright claim. Letter from Sukites to Youssefi of 02/04/05, at 1.
B. First Request for Reconsideration
In a letter dated April 28, 2005, you requested reconsideration of the Office’s refusal to register the Best Western Logo. Letter from Youssefi to Copyright R&P Division of 04/28/05, at 1. You noted that the requisite amount of creativity to support a copyright claim is “extremely low,” and argued that the subject work meets this threshold. Id. You explained that the work’s use as a trademark is irrelevant to a determination of its copyrightability, and identified several other logos that the Copyright Office has registered, that courts have held to be copyrightable and that you contend embody the same amount or less creativity than does the Best Western Logo. Id. at 1–3. You argued that the following artistic elements satisfy the creativity and originality requirements for copyrightability: i) a blue, irregularly shaped polygonal design; ii) curvilinearly shaped corners; iii) yellow pin-striping; and iv) an abstract rendition of a red crown. Id. at 3. You claimed that these “original design elements” are not in the public domain and are individually protectible because the Applicant created them through a process of artistic decision making. Id. In the alternative, you argued that the work as a whole is copyrighlable by virtue of its selection and arrangement of elements and embodies more creativity than a polka dot design or a row of roses, both of which designs the Office has registered. Id.
C. Examining Division’s Response to First Request for Reconsideration
Tn response to your first request for reconsideration, Attorney Advisor Virginia Giroux of the Examining Division reexamined the application. She too determined that the subject graphic design does not contain a sufficient amount of original and creative artistic or graphic authorship upon which to support a copyright registration. Letter from Giroux to Youssefi of 08/09/05, at 1. She concluded that the elements comprising the Best Western Logo consist of names, typographic omamentation, lettering, coloring, common geometric shapes and/or minor variations thereof, none of which, either alone or in combination, possesses more than a de minimis quantum of creativity as necessary for copyright protection to apply. Id. at 1–4.
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