Mug Configuration Not Distinctive

In Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 54 USPQ2d 1065, 1069 (2000), the U.S. Supreme court held that product configurations can never be inherently distinctive. Now, according to the TTAB Blog on April 28, 2005, the U.S. Trademark Trial and Appeal Board has explained in In re Pacific Market, Inc., Serial No. 75444515 (April 14, 2005) [not citable], why "the burden of showing acquired distinctiveness in a product configuration is significant."



Pacific reportedly offered the declarations of two employees, stating that the mug shown above was sold to Starbucks, Target Stores, and Seattle's Best Coffee, that its shape is unusual, and that it was "specifically designed with the intention that it be a distinctive design in the marketplace." Pacific also provided sales figures of 150,000 units over a five-year period. However, there was no evidence that the shape is recognized by the trade or by the ultimate consumers as a trademark. The TTAB blog also illustrates nicely how competing products had a similar look and the the design was not featured in promotional materials.

Thanks John, and watch out for Pacific Marketing's portfolio of design patents, including D476,528.