The Board affirmed two packaging configuration marks for "kits containing an assortment of products of benefit to women," finding the packaging to be not inherently distinctive and lacking in acquired distinctiveness. In re Arlington Specialties, Inc., Serial Nos. 85851794 and 85851833 (February 21, 2017) [not precedential].
The marks comprise the configuration of a pouch for holding the products, the pouch on the left being enclosed in a transparent cuboid. [Applicant disclaimed any right in the transparent cuboid box]. Applying the Seabrook factors, the Board found the pouch design to be a common shape in the field of cosmetic and toiletry bags. [Think Dopp kit - ed.]. Although there was no evidence that the applied-for marks are merely a refined version of competitor trade dress, the Board found "no demonstrated reason why consumers would perceive Applicant's packaging design as anything other than merely a dopp kit-shaped container for cosmetic and toiletry items ...."
Turning to the Section 2(f) issue, the Board noted that "[t]ypically, more evidence is required when a proposed mark is shown to be in use by others." Although applicant's evidence was "not insubstantial," it showed at best "that consumers might recognize Applicant's goods because the pouches are compact or 'cute,'" However, even if the size of the pouch has become a distinctive feature, that feature is not described or shown in the subject applications. Nor was there sufficient evidence to show that the pouch-within-the-box was perceived as anything other than mere packaging.
The Board concluded that the configurations of the proposed marks have not acquired distinctiveness, and so it affirmed the refusals.