[University of Washington] School of Law Professor Sean O’Connor, guest blogging at Legal Satyricon, writes about AT&T’s trademark registration of the bars indicating cell phone signal strength (depicted left).
“The bars are purely functional representations of the strength of cell service and a standardized one at that,” he writes. “If anything were unworthy of being captured as a trademark, this should have been it.
Ok, well, maybe not anything, but the point is well taken. More from O’Connor:
Fortunately, the PTO seems to have come to its senses and is going to cancel the mark. But in the meantime, at&t continues to paste billboard all over the country with the “More bars in more places” campaign and the bars logo with “®” attached. I understand that until the mark is fully cancelled, they probably have a right to keep using the “®”. But I think it is shady and misleading at best, given the cancellation proceedings underway.
Well, you ain’t canceled till you’re canceled, but read his post, because he does a great job of addressing how corporations use dubious claims of IP rights as very sharp elbows to crowd out others for market position. “You have to admire that kind of Machiavellian cunning,” he says. “And it’s a testimony of the continuing power of high cost lawyers and blanket marketing campaigns.” 
Well, all right, but it’s testimony to a damned good cell signal too, Professor!
After all, take it from a T-Mobile customer — you don’t see T-Mobile trying to “own” the icon for robust cell coverage. They were reduced to trying to corner the market for magenta.
Why is it functional? It may be de facto functional, because it performs an indicating function. But why is it de jure functional? The strength of a signal could be shown in may other ways, like a thermometer display, or a speedometer-type display. Is the five-bar design less expensive to create? Is it covered by a utility patent? Why can’t others design their own indicators?
I don’t see any evidence that the TTAB is going to cancel the registration. All I see is a pending cancellation proceeding in which nothing has been decided.
PS: The PTO (or TTAB) doesn’t cancel a “mark.” It may cancel a “registration.”
John, is the signal strength icon at issue an agreed upon industry standard? I suspect it might be. Don’t know how that would impact the functionality argument, however.
It ought to be cancelled as fraud. The next time AT&T actually gives me that many bars on my iPhone will be the first time. (To be fair, I am in obscure out-of-the-way locations like Manhattan.)