In view of Applicant OEP's own utility patent, the Board had
no doubt in affirming a Section 2(e)(5) functionality refusal of
the product configuration shown below, for umbrellas. Although
Section 2(e)(5) is an absolute bar to registration, the Board also
considered OEP's claim of acquired distinctiveness under
Section 2(f) but found its proofs inadequate. In re OEP Enterprises, Inc., 2019 USPQ2d
309323 (TTAB 2019) [precedential] (Opinion by Judge Christopher
Larkin).
Functionality: Observing that the application
drawing "depicts the mark to be registered," and that
unclaimed matter must be shown in broken lines, Kohler,
125 USPQ2d at 1488 (quoting Heatcon, 116 USPQ2d at 1379)
(citing Trademark Rule 2.52, 37 C.F.R. § 2.52)), the Board
concluded that the assessment of functionality must take into
account the entire configuration of the umbrella and not, as OEP
contended, just the "mesh lower canopy of a double canopy
umbrella."
