TTAB Finds Toilet Plunger Designs De Jure Functional

Applicant George Tash's utility patents and his boastful advertising led to the Board' s finding that the two product designs shown below are de jure functional and unregistrable as trademarks. In addition, assuming arguendo that the designs are not functional, Tash's evidence of acquired distinctiveness was insufficient to show that the designs have become source-identifying. In re Tash, Serial Nos. 76577156 and 76566157 (April 18, 2008) [not precedential].


Section 2(e)(5) bars trademark registration of functional matter. In determining functionality, the Board applies the four factors set forth in In re Morton-Norwich Prods., Inc., 213 USPQ 9 (CCPA 1982).

Here, each of Applicant's designs falls within the claims of a utility patent owned by Applicant (one of which has expired). Moreover, in each patent Applicant points to the utilitarian benefits of the particular configuration. This evidence "weighs heavily toward finding functionality."

Applicant argued that his ownership of a design patent for one configuration "cancels out the functional effect of his utility patent." Not so, said the Board. "[T]he presence of the utility patent is significantly more weighty in indicating the utilitarian aspects of the configuration."

Under the second Morton-Norwich factor, Applicant's advertising added further weight to the Board's finding of functionality. The advertising touted the utilitarian benefits of the designs in delivering "more plunge power per push" and the "[g]reatest plunging capacity on the market today."

Finally, Applicant argued that each design "consists of an arbitrary combination of functional parts." However, "the evidence shows that the overall design is functional," and the "inclusion of a few arbitrary or otherwise nonfunctional features in the design will not change the result."

Turning to Applicant's 2(f) claim, assuming the designs were not de jure functional, the Board found Applicant's evidence inadequate. Tash's advertising promotes the functional benefits of the product designs, and does not promote the designs as trademarks. Moreover, Applicant failed to provide information regarding the amount or extent of his advertising. The declarations he submitted were of limited probative value because "they are from industry insiders with an apparent interest in applicant's sales," and not from ultimate consumers of the products.

Therefore the Board concluded that Applicant did not establish acquired distinctiveness.

TTABlog comment: In a remarkable display of blogging self-restraint, I did not include a single pun in this posting.

Text Copyright John L. Welch 2008.