The Board affirmed two refusals to register, on the Supplemental Register, the product configuration shown below for "Headphone cables sold as an integral component of headphones," on the grounds of functionality and genericness. The marks "consists of a headphone cable having a cross-section in the form of an oblong, wherein the cable features contoured outer edges and is significantly wider than it is thick." In re Monster Cable Products, Inc., Serial No. 85318060 (December 28, 2015) [not precedential].
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Functionality: Applying the Morton-Norwich factors, and guided by the CAFC's decision in In re Becton, Dickinson and Co., 102 USPQ2d 1372 (Fed. Cir. 2012) [TTABlogged here], the Board concluded that the proposed mark is, as a whole, functional. Applicant Monster's utility patent disclosed the usefulness of (it doesn't tangle), and claimed, the flat cable design. Although the patent did not discuss the contoured sides of the flat cable, that aspect of the design was, according to the Board, "imperceptible and inconsequential." Monster's advertising emphasized the non-tangle benefit of the headphone cable, attributing this feature to the fact that the cable is "significantly wider than it is thick."
The Board reviewed a number of alternative cable designs submitted by Monster - although the Board did not have to consider them in view of the persuasive impact of the patent and advertising evidence. These alternative designs, the Board found, did not offer the same features as Monster's configuration
The Board concluded that the applied-for mark is functional under Section 23(c), and therefore unregistrable on the Supplemental Register.
Genericness: A product design may be found generic when the design is "at a minimum, so common in the industry that it cannot be said to identify a particular source." Stuart Spector Designs Ltd. v. Fender Musical Instruments Corp., 94 USPQ2d 1549, 1555 (TTAB 2009) [Guitar shape] [TTABlogged here].
The Board found that Examining Attorney Kim Teresa Moninghoff had submitted ample evidence that other entities provide headphone cables that are oblong and have curved or rounded edges that are the same as, or highly similar to Monster’s design: i.e., headphone cables that are significantly wider than thick, and have curved or rounded side contours.
The Board concluded that Monster's applied-for mark is a "generic design for flat headphone cables, incorporating the common, basic elements of an oblong cross-section (i.e., wider than it is thick) and curved edges."