Yet another product configuration "mark" failed to
clear the Section 2(e)(5) hurdle, as the Board affirmed a refusal
of the proposed mark shown below, finding it to be de jure
functional for "Plumbing products, namely, a bathtub overflow
drain cap." After a detailed review, the Board found that
applicant's own utility patents were "sufficient to make
the determination of functionality." It declined to reach the
issues of failure-to-function under Sections 1, 2, and 45, and
acquired distinctiveness under Section 2(f). [Griff Thomas reported
here on the oral argument in this case]. In re WCM Industries, Inc., Serial No.
87555014 (March 17, 2020) [not precedential] (Opinion by Judge
Karen Kuhlke).
