In Re Morton-Norwich Products, Inc.

671 F.2d 1332 (1982)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P sought to register a container configuration as a trademark for spray starch, soil and stain removers, spray cleaners for household use, liquid household cleaners, and general grease removers, and insecticides. P owns two patents on that same configuration one of which is directed to the mechanism in the spray top. You know this family of products as FANTASTIK, GLASS PLUS, SPRAY 'N WASH, GREASE RELIEF, WOOD PLUS, and MIRAKILL. Since March 31, 1974 P has enjoyed substantially exclusive and continuous use of the trademark [i.e., the container] which has become distinctive of P's goods in commerce. The examiner held that the design is not distinctive, and is 'merely functional,' 'essentially utilitarian,' and non-arbitrary, wherefore it cannot function as a trademark. P furnished two affidavits to the effect that consumers spontaneously associate the package design with D's products, which had been sold in the container to the number of 132,502,000 by 1978. P produced the results of a survey which had been made in response to the examiner's demand for evidence of distinctiveness. The examiner dismissed all of the evidence as 'not persuasive.' The examiner held that the design 'is no more than a non-distinctive purely functional container for the goods plus a purely functional spray trigger controlled closure * * * essentially utilitarian and non-arbitrary * * *.' The Board affirmed. It held that the configuration of which P seeks to register is dictated primarily by functional (utilitarian) considerations, and is, therefore, unregistrable despite any de facto secondary meaning which applicant's survey and other evidence of record might indicate. P appealed.