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TTAB Dismisses Opposition to Bottle Shape Trademark: Opposer Failed to Prove Functionality

By John L. Welch

Applying the CCPA's Morton-Norwich analysis, the Board dismissed an opposition to registration of the product configuration mark shown below for "plastic water bottle, sold empty," rejecting Opposer's claim that the design is de jure functional. Opposer also pleaded, but failed to pursue, the issue of acquired distinctiveness. Triforest Enterprises, Inc. v. Nalge Nunc Int'l Corp., Opposition No. 91165809 (January 31, 2008) [not precedential].Opposer argued that "virtually every element of the mark ... has a utilitarian advantage," and that the design is functional "because it consists of a common 'Boston Round' bottle shape to which opposer has simply added a functional tether cap with ring and button."Applicant Nalge Nunc pointed out that Opposer had ignored the functionality factors set forth in In re Morton-Norwich Prods...continue to full post

Full post as published by The TTABlog on February 14, 2008 (boomark / email).