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Applicant's Own Boastful Advertising Leads TTAB to Find Tray Design Functional

The Board tossed another purported product configuration mark in the TTAB trash can, finding the tray design of Applicant Gratnell's Limited to be functional under Section 2(e)(5) and, if not functional, lacking in acquired distinctiveness. Gratnell's served up the decisive functionality evidence on a platter: its own own advertising materials touting the superiority of the design. In re Gratnell?s Limited, Serial No. 78450327 (April 8, 2009) [not precedential].Gratnell's sought to register the product design for "trays not of precious metals, namely storage trays, trays of plastic for storage and stackable trays," which the Board understandably referred to simply as "trays."Functionality: The Board applied the functionality test laid down in In re Morton-Norwich Prods...continue to full post

Full post as published by The TTABlog on April 27, 2009 (boomark / email).