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TTAB Affirms Refusal of "Closure Cap Configuration Mark" on Functionality and Nondistinctiveness Grounds

In an instructive 29-page decision, the Board affirmed a Section 2(e)(5) refusal to register the product configuration mark shown below (the "closure cap configuration mark") for "closures for medical collection tubes," finding it to be functional. In the alternative the Board found that the proposed mark lacks acquired distinctiveness. In re Becton, Dickinson & Company, Serial No. 77254637 (July 27, 2010) [not precedential].Functionality: The Board applied the CCPA's Morton-Norwich factors in determining functionality.(1) A utility patent owned by Applicant indicated that "several features of the closure cap configuration mark are indeed guided by utilitarian concerns." The circular opening in the top allows for a needle to puncture the cap and the ribs on the side provide a gripping surface...continue to full post

Full post as published by The TTABlog on August 06, 2010 (boomark / email).