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ARTICLE · 10 OCTOBER 2012

Pattern Designs On US Navy Uniforms And Fabric Are Non-Functional Protected Trademarks

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

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A recent TTAB case addresses the issue of functionality and protection of design.

United StatesIntellectual Property
Susan Neuberger Weller
Susan Neuberger Weller
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A recent TTAB case addresses the issue of functionality and protection of design.  In the case In re Navy Exchange Service Command, ("NEXCOM"), the TTAB issued a non-precedential decision on September 29, 2012 in which it reversed the Examining Attorney's refusal to register four irregular block-shaped, multi-colored pixilated pattern design marks that the US Navy used on clothing and fabric. The grounds for the Examining Attorney's refusals were that the pattern designs were functional.  The functionality finding rested not on the conclusion that the patterns served any camouflage function, but that the patterns masked stains and wear-and-tear, thereby making them essential to NEXCOM's requirements for a neat and clean Navy uniform.

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