John Welch reports, at the TTABlog, about what you’d think would be a no-brainer:
The Board affirmed a refusal to register the configuration shown below, for “electric skillets,” finding that Preston’s proof of acquired distinctiveness under Section 2(f) was inadequate. In re National Presto Industries, Inc., Serial No. 85883551 (April 19, 2016) [not precedential].
The mark comprises the curved handles of the skillet, not the metal base or the glass lid or the knob (which are shown all in dashed lines).
Of course, under Wal-Mart, product configurations cannot be inherently distinctive, so Presto resorted to Section 2(f), relying on its use of the “mark” since 2005, sales of more than $65 million, more that $5 million in advertising expenditures, and distribution of some 80,000 product catalogs.
The Board observed that sales figures showing commercial success of the product are not probative of purchaser recognition of the product’s configuration as a source indicator. The critical question is whether the product design is being used and advertised in such a way that consumers “associate the product design with a particular applicant, and therefore view the product as emanating from a single source.” So-called “look-for” advertising may be particularly probative.
This is not a surprising outcome, even a little tiny bit.
But maybe I take too much for granted! Read More…