National Presto Industries, Inc. (“Presto”). April 2016 is set to be a month that National Presto Industries, Inc. (“Presto”) will long remember. On April 15, 2016 the TTAB (“the Board”) affirmed a Section 2(e) (5) refusal to register a product configuration for its “electric popcorn poppers,” finding the design to be de jure functional. The Board also affirmed the PTO’s alternative refusal, finding that the configuration lacks acquired distinctiveness under Section 2(f). In re National Presto Industries, Inc., Serial No. 85870582 (April 15, 2016) [not precedential].

Then, on April 19, 2016, the Board ruled that Presto’s Electric Skillet configuration lacks acquired distinctiveness.

PRESTO’S ELECTRIC SKILLET

National Presto Industries, Inc. (“Presto”) sought registration on the Principal Register under Section 2(f) of the Trademark Act of the product design mark for goods identified as “electric skillets” in International Class 11.

Application was filed on March 22, 2013, based upon Presto’s allegation of use in commerce, citing April 30, 2005 as both the date of first use and the date of first use in commerce.

The mark consists of three dimensional configuration of an electric skillet having a combination leg/handle located on each of the short sides of the generally rectangular cast metal base. The mark comprises the curved handles of the skillet, and does not include the metal base or the glass lid.

Registration of the mark was refused on the ground that Presto’s applied-for mark consists of a non-distinctive product design of the goods that does not function as a mark under the Trademark Act and has not acquired distinctiveness.

The TTAB affirmed the refusal to register for the reasons stated in its decision, which included, its determination that Presto admitted that its configuration mark is not inherently distinctive by seeking registration under Section 2(f) citing In re MGA Entm’t, Inc. (application under Section 2(f) is a concession that the mark is not inherently distinctive).

In support of its claim of acquired distinctiveness, Presto submitted the declaration of Douglas J. Frederick (“Frederick”) Secretary and General Counsel of Presto, in which Frederick declared, among other things, that: At least $65,000,000 worth of electric skillets (at wholesale value) bearing the product design and trade dress of the Mark have been sold by Presto as of November 4, 2013; Through advertising allowances provided to retailers, Presto spent more than Five Million Dollars advertising its electric skillets, which utilize the Mark; and, The Mark is widely associated with Presto’s product among consumers.

The Board found that, although it is clear from the record that Presto’s line of electric skillets has been actively promoted and sales have been significant, there is very little evidence from which it can conclude that prospective electric skillet purchasers view the shape of the combination leg/handle of Applicant’s electric skillets as an indication of the source of those skillets.

The Board’s decision: The refusal to register under Sections 1, 2 and 45 of the Trademark Act on the ground that Applicant’s mark is a non-distinctive product design and that Applicant has not established acquired distinctiveness under Section 2(f) of the Trademark Act is affirmed.