Applicant Interpage's quixotic attempt to register, on the Supplemental Register, the packaging design shown below for canned fish, ran into a TTABrick wall. The Board agreed with Examining Attorney Christopher M. Nunley that the design is de jure functional and generic. "Granting Applicant exclusive rights to the proposed packaging configuration design would prevent its competitors from continuing to offer their canned or tinned fish with the see-through top feature." In re Interpage International, Inc., Serial No. 88586036 (June 21, 2021) [not precedential] (Opinion by Thomas W. Wellington).
Preclusion against the USPTO?: Interpage had previously applied to register, on the Principal Register, nearly the identical design for some of the same goods, but was refused registration on the ground of functionality and, alternatively lack of distinctiveness. The Board then reversed the functionality refusal but upheld the non-distinctiveness refusal, finding Interpage's Section 2(f) evidence inadequate. [TTABlogged here]. Interpage now argued that, in light of the Board's prior decision on functionality, the USPTO should be precluded from raising that issue again. Nothing doing, said the TTAB. The Board pointed out that the USPTO is not a party in an ex parte appeal, but rather is merely fulfilling its role regarding the examination of applications. Moreover, there is a strong public interest in preventing registration of functional "marks." In short, "the Office should not be precluded from raising a functionality ground for refusal, even if the Office failed to meet its burden in proving the ground in a prior appeal proceeding involving the same applicant, same mark, and same goods or services."
Furthermore, although the Board should strive for consistency in our holdings, we are not compelled to reach the same determination as to functionality of Applicant’s package configuration mark, particularly given a different record has been adduced by the Examining Attorney and Applicant in this appeal.
Functionality: The Examining Attorney contended that the easy-opening, transparent lid and the common round shape have "multiple utilitarian advantages" that make the configuration "one of the superior designs available." The design "offers transparency to inspect the goods and is easier to open than a metal lid." The Board, without much discussion, agreed.
Genericness: The Board observed that "[T]rade dress that cannot serve as an indicator of source is generic and unprotectable." Product packaging that is common in an industry will not be perceived as indicating source and is not registrable on either Register. The evidence showed that the subject cylindrical can design with a transparent top has been adopted by numerous competitors.
In sum, the evidence establishes that consumers of canned or tinned fish will primarily regard the applied-for product package design as a common type of container for tinned or canned fish, rather than as a source indicator for Applicant’s goods in particular. In view of the above, we find Applicant’s product packaging design to be generic and thus unable to function as a trademark.
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Text Copyright John L. Welch 2021.
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