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TTAB Finds Flashlight Casing Not De Jure Functional but Lacking in Distinctiveness

The Board reversed in part and affirmed in part a refusal to register the product configuration mark shown on the right, for "portable lighting equipment, namely flashlights." It jettisoned the Section 2(e)(5) functionality refusal, but affirmed the refusal to register on the ground that Applicant failed to establish that the product shape has acquired distinctiveness. In re Brayco Products, Ltd., Serial No. 77296052 (November 16, 2009) [not precedential].Applicant Brayco described its mark as "the configuration of an elongated oval light casing having one end featuring a similarly formed transparent window for covering an array of lights beneath the transparent window." As we know, to achieve registrability, a product shape must clear two hurdles: Section 2(e)(5) functionality and acquired distinctiveness...continue to full post

Full post as published by The TTABlog on November 19, 2009 (boomark / email).