Teardrop Design Mark is Product Shape, Needs Acquired Distinctiveness, Says TTAB

Crane USA, Inc. sought to register the two-dimensional design mark shown below, for "humidifiers for home use," under Section 1(b) [intent-to-use] but Examining Attorney Anthony M. Rinker refused registration on the ground that the mark is a three-dimensional product configuration that requires acquired distinctiveness for registration. The Board agreed and affirmed the refusal. In re Crane USA, Inc., Serial No. 86172232 (August 7, 2015) [not precedential].

As we know, product configuration trade dress is registrable only upon proof of acquired distinctiveness. Wal-Mart Stores, Inc. v. Samara Bros., 529 US 205, 209-210, 54 USPQ2d 1065, 1066 (2000). Although Crane described its mark as a "two-dimensional depiction of a three-dimensional housing having generally a tear shape," the examining attorney submitted evidence (a Target advertisement) of the humidifier that crane seeks to sell (see below).

Crane argued that it is still entitled to register a two-dimensional designeven if it sells a three-dimensional product, but the Board was unmoved:

Applicant’s attempt to register the mark with a description of it as "a two-dimensional depiction of a three-dimensional housing" does not alter the likely consumer perceptions, or for that matter perceptions of competitors, that what is claimed is the trade dress as otherwise depicted in the drawing and the description. As our precedent dictates, "[e]ven an application to register a configuration of a product depicts a mark in two-dimensional form, perhaps from a view that yields a perspective of depth."

Crane sought registration under Section 1(b), and therefore there was no evidence of acquired distinctiveness.

For good measure, the Board also affirmed three other refusals of the applied-for mark, upholding requirements for 1) a product configuration drawing that depicts Applicant’s mark in the drawing to include broken or dotted lines to show the position of the mark on goods or container as required by 37 CFR 2.52(b)(4); 2) a “clear and concise description of the mark” that a) indicates the mark is a three-dimensional configuration of goods or packaging; b) specifies all elements claimed; and c) specifies elements not part of the mark and serves only to show position or placement in accordance with 37 CFR 2.37 and 2.52(b)(2); (b)(4); and 3) the product information and documentation regarding the applied-for mark in accordance with 37 CFR 2.61(b).

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TTABlog comment: The Board pointed out that trade dress for services (for example, Chippendales cuffs and collars) may be inherently distinctive and thus registrable without a showing of acquired distinctiveness. Not so for product shape.

Text Copyright John L. Welch 2015.