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This section contains the nature of the case and procedural background.

P described the mark in her application as a 'configuration' that consists of a label with the words 'FLASH DARE!' in a V-shaped background, and cut-out areas located on each side of the label. The cut-out areas consist of a hole in a garment and a flap attached to the garment with a closure device. P received a design patent for the cut-out area design. She also registered on the Supplemental Register a design mark for the cut-out area. In addition, she registered the word mark 'FLASH DARE!' on the Principal Register. P argued that the trade dress was inherently distinctive. The examiner refused to register the mark on the ground that the clothing configuration constitutes 'product design/configuration,' and pursuant to Wal-Mart Stores, Inc. v. Samara Brothers, Inc., a 'product design' cannot be inherently distinctive. The examiner found that the configuration is not 'unitary,' for purposes of avoiding a disclaimer requirement. P appealed and the Board found that the cut-out areas, consisting of the holes and flaps, constituted product design. The Board also determined that the trade dress configuration was not unitary. It held that 'various elements [of the trade dress] are not so merged together that they cannot be divided and treated as separable elements.' It noted that P had previously registered the words 'FLASH DARE!' on the Principal Register. Because portions of the trade dress were registered separately, the Board found that that fact supported a determination that the elements of the configuration were not unitary. P appealed. P argues that whether trade dress is product design or not is a legal determination, whereas the government asserts that it is a factual issue.

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