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2021) [not precedential] (Opinion by Judge Jyll Taylor).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
