E.D. Va. Affirms TTAB: Timberland Boot Design Is Functional And Lacks Acquired Distinctiveness

In an appeal by way of civil action under Section 1071(b), the U.S. District Court for the Eastern District of Virginia upheld the TTAB's decision [TTABlogged here] affirming a refusal to register certain features of Timberland's boot design on the ground that the proposed mark for "footwear, namely, lace-up boots" lacked acquired distinctiveness. Although the Board declined to rule on the USPTO's Section 2(e)(5) functionality refusal, the district court affirmed that refusal as well. TBL Licensing, LLC v. Vidal, Civil Case No. l:21CV681 (E.D. Va. December 8, 2022).

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: a total of eight specific features.