Affirming Refusal to Register, TTAB Finds "WindyWings" Product Configuration Lacking in Acquired Distinctiveness

Applicant Exhart Environmental's application to register the product configuration shown below as a trademark for "non-metal garden stakes sold wholesale; Decorative garden accessories, namely, figurines of plastic sold wholesale" failed to achieve lift-off. The Board agreed with Examining Attorney Bridget Watson that Exhart's proof of acquired distinctiveness was insufficient to justify registration. In re Exhart Environmental Systems, Inc., Serial No. 90006864 (August 8, 2023) [not precedential] (Opinion by Judge Michael B. Adlin).

As we know, a product configuration is registrable as a trademark only upon a showing of acquired distinctiveness under Section 2(f). Walmart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 54 USPQ2d 1065, 1069 (2000). An applicant’s burden in establishing the requisite acquired distinctiveness is "heavier" when a product configurations is involved.

Much of Exhart's evidence focused on the "flexible wings" of the product, but Exhart was not seeking protection for its flexible wings. Furthermore, its advertising showing pictures of the product did not inform consumers that the product design is a source indicator.

Because Applicant does not seek a registration covering “flexible wings,” Applicant’s advertising instructing consumers to “look for the flexible wings” does not show that the mark Applicant seeks to register has acquired distinctiveness. Furthermore, “the record contains no evidence regarding how widely this ‘look for’ advertising was disseminated, how many consumers may have been exposed to it, or its effectiveness in indoctrinating consumers to view the design as an indicator of source.”

Exhart's advertising refers to the product as "WindyWings," and the surrounding context indicates that the product’s name/mark is “WindyWings.” The Board found, based on the specimen and other promotional material, that "consumers would focus on other matter for source indication and would not perceive the product design as a source indicator. This weighs against Applicant’s claim of acquired distinctiveness."

Exhart's long use of the proposed mark (since 1999) did not establish acquired distinctiveness, nor did its sales figures. "The years of use and sales reflect the popularity of the product, but, given the record as a whole, do not persuade us that consumers view the product configuration as a mark." Exhart's evidence regarding its enforcement efforts and the alleged copying of the product configuration lacked sufficient detail to be probative. And two declarations from retailers referred to consumer recognition of the "flexible wings" but not the product shape at issue.

The Board concluded that Exhart "has not met its heavy burden to establish that its product configuration has acquired distinctiveness" and it therefore affirmed the refusal to register.

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TTABlogger comment: Seems to me that the flapping wings would chase birds away. Is that what these things are supposed to do? I can see squirrels destroying them pretty quickly. At least Cape Cod squirrels.

Text Copyright John L. Welch 2023.