Relying on Applicant's own advertising touting the design of its knife blade and its ease of manufacture (yielding lower cost), the Board affirmed Examining Attorney Caroline L. Moran's Section 2(e)(5) functionality refusal of the design of a "serration pattern" on the blade of a knife (shown below). Applicant GB's design patent served as some evidence of non-functionality, but was outweighed by GB's own advertising touting the design's utilitarian benefits. [I suppose one could say that GB stabbed itself in the foot - ed.]. For the purpose of completeness, the Board also considered Applicant GB's claim of acquired distinctiveness but found the evidence insufficient to support the Section 2(f) claim. In re GB II Corporation d/b/a Columbia River Knife & Tool Company, Serial No. 88730809 (February 8, 2022) [not precedential] (Opinion by Judge Jonathan Hudis).
Functionality: In determining the functionality issue, the Board looked to the ever popular Morton-Norwich factors: (1) the existence of a utility patent that discloses the utilitarian advantages of the subject matter sought to be registered; (2) advertising by the...
