Thad Jenks recently secured the Fifth Circuit’s affirmance of a summary judgment he obtained for Landmark Interest Corporation in a trademark case involving the Texas star.  Landmark, a general contractor in the self- storage industry, was sued by a self-storage facility named Amazing Spaces arising out of Landmark’s construction of several storage facilities that were adorned by a raised, five pointed star in a circle that most would recognize as the Texas star. Amazing Spaces uses the Texas star to adorn its buildings and in other aspects of its business marketing.  Amazing Spaces also persuaded the United States Patent & Trademark Office to register the Texas star as a federal trademark.  Nevertheless, based on detailed briefing provided to the Court demonstrating numerous other users of the Texas star both in and out of the storage industry, Jenks convinced Judge Lee Rosenthal of the United States District Court for the Southern District of Texas to grant summary judgment on Landmark’s claim that the Texas star cannot be trademarked despite the USPTO’s registration of the star.  Judge Rosenthal found that “a five-pointed star set within a circle is a common symbol long associated with Texas.  A drive on a highway, a walk along a downtown street, or a visit to a shopping center drives home just how common the five-point star within a circle design is. . . . The ubiquitous nature of the five-pointed star set within a circle precludes a finding that it is inherently distinctive or that it can serve as an indicator of origin for a particular business.”  The district court also held that “as a matter of law, the star mark is not entitled to trademark protection.”  Amazing Spaces appealed the decision, but now the Unites States Court of Appeals for the Fifth Circuit, sitting in New Orleans, has agreed that the Texas Star symbol cannot serve as a “legally protectable” trademark.  The appeals court ruled that “in light of the overwhelming evidence that the Star Symbol” is not used in a unique or distinctive way by Amazing Spaces, the trial court correctly dismissed the lawsuit.  Upon receipt of the Fifth Circuit’s opinion, Amazing Spaces voluntarily dismissed its remaining copyright and trade dress infringement claims.  Case No. 09-20702; Amazing Spaces, Inc. v. Metro Mini Storage and Landmark Interest Corporation; In the United States Court of Appeals for the Fifth Circuit affirming Case No. 4:08-CV-00629; Amazing Spaces, Inc. v. Metro Mini Storage and Landmark Interest Corporation; In the United States District Court for the Southern District of Texas, Houston Division.