Section 2(e) - Functionality

Written by: Susan Neuberger Weller

Fabric design is a creative art form that has existed for thousands of years. Although the methods for creating such designs have evolved, the purpose and function of such designs has not changed as significantly.  Fabric designs are used for purely ornamental and decorative purposes, for purposes of identity, and also to convey information.  From an intellectual property standpoint, how a fabric design is used may dictate what type of protection it can claim. In addition, the time it takes to obtain each type of IP protection, its duration, and the procedures for enforcement may also dictate the type of protection to seek. Continue Reading It’s a Material IP World: Trademarks, Copyrights, Design Patents and Fabric Designs

Written by Susan Neuberger Weller

A recent TTAB case addresses the issue of functionality and protection of design.  In the case In re Navy Exchange Service Command, (“NEXCOM”), the TTAB issued a non-precedential decision on September 29, 2012 in which it reversed the Examining Attorney’s refusal to register four irregular block-shaped, multi-colored pixilated pattern design marks that the US Navy used on clothing and fabric. The grounds for the Examining Attorney’s refusals were that the pattern designs were functional.  The functionality finding rested not on the conclusion that the patterns served any camouflage function, but that the patterns masked stains and wear-and-tear, thereby making them essential to NEXCOM’s requirements for a neat and clean Navy uniform. Continue Reading Pattern Designs on US Navy Uniforms and Fabric Are Non-Functional Protected Trademarks