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Seldom does a product configuration clear the Section 2(f) hurdle, and this Timberland boot design joined the list of losers. The Board affirmed a refusal to register on the ground that the proposed configuration mark (drawing below) for 'footwear, namely, lace-up boots' lacked acquired distinctiveness. In re TBL Licensing LLC, Serial No. 86634819 (April 2, 2021) [not precedential] (Opinion by Judge Jyll Taylor).
The boot design at issue includes a 'bulbous toe box,' a 'tube-shaped ankle collar,' a two-toned outsole,' an hourglass-shaped rear heel panel, and other elements. Of course, product configurations cannot be inherently distinctive (Wal-Mart), but a non-functional product design may be registered if it has acquired distinctiveness. [The Board declined to reach the functionality refusal as well as the requirement for a new drawing and description of the mark]. Applicant Timberland had the burden to prove that 'the product design sought to be registered is perceived by relevant consumers not just as the product (or features of the product), but as identifying the producer or source of the product.'
Applicants face a heavy burden to establish distinctiveness and register trade dress. Stuart Spector Designs, Ltd. v. Fender Musical Instruments Corp., 94 USPQ2d 1549 (TTAB 2009); see also Duraco Prods., Inc. v. Joy Plastic Enters., Ltd., 40 F.3d 1431, 1453, 32 USPQ2d 1724, 1742 (3d Cir. 1994) ('secondary meaning in a product configuration case will generally not be easy to establish'). *** Further, in cases of trade dress or product design, the evidence provided to establish acquired distinctiveness must relate to the promotion and recognition of the specific configuration embodied in the proposed mark and not to the goods in general.
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The Board turned to the Converse factors to assess Timberland's evidence: '(1) association of the trade[mark] with a particular source by actual purchasers (typically measured by customer surveys); (2) length, degree, and exclusivity of use; (3) amount and manner of advertising; (4) amount of sales and number of customers; (5) intentional copying; and (6) unsolicited media coverage of the product embodying the mark.' In re SnoWizard, Inc., 129 USPQ2d at 1005 (TTAB 2018) (quoting Converse, Inc. v. Int'l Trade Comm'n, 907 F.3d 1361, 128 USPQ2d 1538, 1546 (Fed. Cir. 2018)).
As to the first factor, the Board accorded little probative value to two declarations from retailers for Timberland's boots, since the declarants are not ordinary consumers: they already know the source of the goods. Excerpts from various publications likewise were of little import since they all identify the boots as Timberland boots and do not direct the reader to any claimed trade dress.
As to the second factor, Timberland claimed that it has made this boot since 1773, except for the two-toned sole introduced in 1988. Thus it demonstrated continuous use of the claimed design for thirty years. However, the Board found that this use was not substantially exclusive since the overall shape and appearance of third-party work-style boots 'are quite similar to the boot trade dress Applicant seeks to register.' In only one instance did Timberland seek to stop a third-party from selling a supposedly infringing boot.
As to the third and fourth factors, Timberland has sold more than 15 million pairs of boots over the last 15 years, amounting to at least $1.3 billion in revenue. It spent $1.5 million on marketing and adverting its lace-up boots bearing the applied-for trade dress from 2011-2016. However, none of the advertisements 'highlight[ed] the product design features Applicant seeks to register or promote[d] those collective features as a source indicator. Rather, the record advertisements consistently show a picture of Applicant's lace-up boots primarily with the tree logo visible and with the word mark TIMBERLAND and/or the tree logo design prominently featured and/or the 'original yellow' color touted.'
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The Board agreed with Timberland that 'look-for' advertising is not required in order to prove acquired distinctiveness, but there was 'little evidence that the features which Applicant claims as its mark – the bulbous toe box, ankle collar, outsole shape and color, rear heel panel, vamp from back to front, and eyelets – have been advertised, or are recognized, individually or collectively as source indicators for the identified lace-up boots.'
In these circumstances, where Applicant's advertising consistently includes the TIMBERLAND word mark and tree logo design and often touts the 'original yellow' color, the absence of advertising that points out the claimed features of Applicant's product design drastically diminishes the probative value of Applicant's advertising expenditures and sales as contributing to any acquired distinctiveness of its product design.
As to the fifth Converse factor, Timberland alleged that competitors have 'slavishly copied' its design, but there was 'no evidence that any third-party copying of one or more elements of Applicant trade dress was intentional, or even if so, was due to an intent to confuse customers as to the source of the products.'
Finally, as to the sixth factor, although there was considerable evidence of unsolicited media coverage, the coverage did not focus on the elements Timberland seeks to register. 'Instead, much of the record media coverage highlights the classic 'wheat' or 'yellow' colored boot, and the presence of the Timberland tree logo burned into the side of the leather upper of Applicant's boots, of which the Hypebeast article opines 'made the boot an icon.'
Conclusion: Considering all the evidence relevant to the Converse factors, the Board found that 'Applicant has not established that its proposed product design has acquired distinctiveness as a source identifier in connection with its lace-up boots.'
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TTABlogger comment: I wonder why Timberland didn't offer any survey evidence? Why do you think?
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