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TTAB Reverses Functionality Refusal of Shape of Traffic Signal Bracket, but Affirms Nondistinctiveness Refusal

There are two major hurdles to registering a product configuration as a trademark: functionality and nondistinctiveness. I wrote an article on this topic a few years ago, cleverly entitled, "Trade Dress and the TTAB: If Functionality Don?t Get You, Nondistinctiveness Will." In the Board's latest product configuration case, Applicant Pelco Products, Inc. cleared the functionality hurdle, only to trip over the distinctiveness barrier. In re Pelco Products, Inc., Serial No. 78485818 (September 19, 2008) [not precedential].Pelco sought to register the design or product configuration shown above for "brackets made of metal for attaching traffic signals to mast arms." The mark consists of the configuration of the bracket, and "resides in the contours of the opposing faces of the two members...continue to full post

Full post as published by The TTABlog on September 29, 2008 (boomark / email).