Adams Mfg. Corp.

Trademark Trial and Appeal Board

Aug 7, 2012

No. 85025503 (T.T.A.B. Aug. 7, 2012)

THIS OPINION
IS NOT A PRECEDENT
OF THE TTAB

Hearing: April 17, 2012 Mailed: August 7, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
________
In re Adams Mfg. Corp.
________
Serial No. 85025503
_______
Lynn J. Alstadt of Buchanan Ingersoll & Rooney PC for Adams
Mfg. Corp.
James W. MacFarlane, Trademark Examining Attorney, Law
Office 104 (Chris Doninger, Managing Attorney).
_______
Before Quinn, Grendel and Wolfson, Administrative Trademark
Judges.
Opinion by Wolfson, Administrative Trademark Judge:
Applicant seeks registration on the Principal Register
of the mark depicted below for “plastic suction cups, not
for medical purposes:”1

1 Application Serial No. 85025503, filed April 28, 2010, based on
September 1991 as the date of first use of the mark and first use
of the mark in commerce. The following description of the mark
and color statements are in the record: “The mark consists of a
three-dimensional configuration of a suction cup with two
concentric rigns [sic] on the outer surface of the cup poriton
[sic] of the suction cup. The broken lines depicting the stem
and outer edge of the suction cup indictate [sic] placement of
the mark on the goods and are not part of the mark. Color is not
claimed as a feature of the mark.”
Serial No. 85025503
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Applicant asserted in its application that the mark
“has become distinctive of the goods/services through the
applicant’s substantially exclusive and continuous use in
commerce for at least the five years immediately before the
date of this statement.” Applicant also claims ownership of
U.S. Registration No. 3339265.2
The examining attorney refused registration on the
ground that the designation (the “concentric rings” design)
is merely a three-dimensional configuration of a feature of
the goods that fails to function as a mark. Trademark Act §
2(e)(5), 15 U.S.C. § 1052(e)(5). The examining attorney
further refused registration on the grounds that the mark is
a nondistinctive product design or design feature of the
product that has not acquired distinctiveness, Trademark Act
§§ 1, 2, and 45, 15 U.S.C. §§ 1051-1052, 1127, and noted
that a showing of acquired distinctiveness, even one
sufficient to overcome the nondistinctiveness refusal under

2 Reg. No. 3339265 for the design mark:
for “plastic suction cups not for medical purposes”;
registered under Section 2(f) on November 20, 2007.
Serial No. 85025503
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the benefits of Trademark Act § 2(f), would not overcome the
functionality refusal.
After the examining attorney made the refusals final,
applicant appealed to this Board. An oral hearing was held.
We affirm the refusals to register.
Functionality
Section 2(e)(5) of the Trademark Act, 15 U.S.C. §
1052(e)(5), provides that registration of a product design
may be denied if it “comprises any matter that, as a whole,
is functional.” A product feature is functional “if it is
essential to the use or purpose of the article or if it
affects the cost or quality of the article.” Inwood
Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844,
214 USPQ 1, 4 n.10 (1982). See also, TrafFix Devices Inc.
v. Marketing Displays Inc., 532 U.S. 23, 58 USPQ2d 1001,
1006 (2001); and In re R.M. Smith, Inc., 734 F.2d 1482, 222
USPQ 1, 3 (Fed. Cir. 1984) (“De jure functionality…means
that the product is in its particular shape because it works
better in this shape.”). To afford registration to
functional designs would inhibit legitimate competition by
in effect granting a monopoly to a non-reputational, or non-
source-identifying, feature of a product. Qualitex Co. v.
Jacobson Products Co., 514 U.S. 159, 34 USPQ2d 1161, 1163-64
(1995); In re Bose, 227 USPQ 1, 6 (Fed. Cir. 1985) (“If the
Serial No. 85025503
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feature asserted to give a product distinctiveness is the
best, or at least one, of a few superior designs for its de
facto purpose, it follows that competition is hindered”).
See also, In re Morton-Norwich Products, Inc., 671 F.2d
1332, 213 USPQ 9, 12 (CCPA 1982); and Kistner Concrete
Products, Inc. v. Contech Arch Technologies, Inc., 97 USPQ2d
1912, 1918-19 (TTAB 2011) (“The functionality doctrine is
intended to encourage legitimate competition by maintaining
the proper balance between trademark law and patent law.”).
The examining attorney argues that applicant’s design
is functional because the “concentric rings” design
“diffuses light that passes through [the suction cup] to
prevent the harmful effects of having sunlight focused on
particular surfaces or objects.”3 The examining attorney
further argues that “[a]lthough there are other ways to
diffuse light passing through a suction cup, applicant’s
design has certain advantages over alternative designs.”4
Applicant concedes that the rings on the surface of the
suction cup diffuse light, but argues that “the mark would
be functional only if the rings are essential to achieving

3 Final Office action, January 11, 2011.
4 Id.
Serial No. 85025503
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light diffusion or the rings affect the cost or quality of
the product. Neither factor is present here.”5
A determination of functionality generally involves
consideration of the following factors (known as the Morton-
Norwich factors):
1. Whether a utility patent exists that discloses the
utilitarian advantages of the design sought to be
registered;
2. Whether applicant’s advertising touts the
utilitarian advantages of the design;
3. Whether alternative designs are available that serve
the same utilitarian purpose; and
4. Whether the design results from a comparatively
simple or inexpensive method of manufacture. See Valu
Engineering Inc. v. Rexnord Corp., 61 USPQ2d 1422, 1426
(Fed. Cir. 2002), citing In re Morton-Norwich Products,
Inc., 213 USPQ at 15-16.
Accordingly, if the concentric rings design is
essential to the light-diffusing qualities of the suction
cup, is less expensive to manufacture, or affects the
quality of the product, registration of the design would

5 Response to Office action, November 5, 2010.
Serial No. 85025503
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hinder the legitimate right of others to compete
effectively.
The Existence of a Patent
“[T]he existence of a utility patent for the features
for which trademark protection is sought is often critical
to a determination that the features are functional.”
Kistner Concrete Products, 97 USPQ2d at 1924 (evidence of
utility patent accorded “heavy weight”). See also, In re
Bose, 227 USPQ at 6 (Board did not err in looking to patent
disclosure); In re Charles N. Van Valkenburgh, 97 USPQ2d
1757, 1759 (TTAB 2011), citing TrafFix Devices Inc., 58 USPQ
2d at 1005 (“A prior patent, we conclude, has vital
significance in resolving the trade dress claim.”).
Applicant’s website includes a section entitled
“Patents” that states: “Each Adams’ suction cup is
protected by one or more of the following patents” and which
lists nine utility and eight design patents.6 Of these, the
examining attorney has made Patent No. 5,039,045 for
“suction cup for use in windows” and Patent No. 5,318,262
for “multiple layer suction holder” of record,7 and

6 At http://suctioncups.com, accessed August 17, 2010 and attached
to Office action of August 18, 2010.
7 Attached to Office action of August 18, 2010. The examining
attorney also made of record Patent Nos. 7,621,649 (light
distribution control type illuminator) and 7,377,661 B2
(illuminated sink). While we have considered these patents, they
Serial No. 85025503
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applicant has made of record Design Patent No. Des. 340,181
for “concentric rings.”8
Patent No. 5,039,045 is particularly probative. It
relates to “the field of transparent and translucent suction
cups adapted to be mounted on window surfaces such as those
found in an automobile” and describes a problem created when
converging light rays pass through a typical suction cup:
“the suction cup can under certain circumstances, act like a
magnifying glass by converging the sun’s rays at a single
focal point,” thereby causing damage to any material, such
as fabric or upholstery, at the focal point. This problem
is solved by providing “a ridge of plastic” along the outer
rim of the suction cup. The light rays are redirected, and
do not converge at a focal point.
The patent claims an improved suction cup “comprising a
plurality of surface deformations … such that light rays
passing through said suction cup will not converge at a
single focal point.” The preferred embodiment of this
invention does not include multiple ridges, only a single
ridge along the rim of the suction cup. However, the patent
describes an alternate embodiment wherein “circular ridge

are not probative of the issues at hand. See January 11, 2011,
Office action.
8 See applicant’s November 5, 2010 response.
Serial No. 85025503
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318 are [sic] provided on frustoconical section 316 of cup
portion 314.”9 This embodiment is shown by FIGS. 7 and 8:10

FIGS. 7 and 8 illustrate a suction cup with four
ridges. “As shown in FIG 8, ridges 318 scatter light rays
330 such that a reduced portion of light rays 332 converge
at focal point 340. Scattered rays 334 do not converge at
focal point 340, thereby obtaining sufficient dispersion of
light.”11
“[T]he invention described in the patent and the
proposed mark do not have to be identical for the patent to
read on or apply to the proposed mark.” Valkenburgh, 97
USPQ2d at 1760-61. The applied-for design, having two
concentric rings, or ridges, is encompassed by the patent

9 Patent No. 5,039,045 at column 3, lines 33-34.
10 Unlike a design patent, the figures appearing in a utility
patent merely illustrate embodiments of the claimed invention.
However, they “are part of the required disclosure of the
invention.” In re Pingel Enterprise Inc., 46 USPQ2d 1811, 1817
n.8 (TTAB 1998).
11 According to the patent, this embodiment is not, apparently,
the most attractive. However, applicant’s President and Chief
Executive Officer, Mr. William E. Adams, indicates that suction
cups having “projections of the surface of the suction cup” other
than those of the preferred embodiment can be “equally or more
attractive.” Adams February 22, 2011, Dec., p. 3.
Serial No. 85025503
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claims.12 The existence of this patent is highly probative
of the functional nature of applicant’s design.13
Turning to Patent No. 5,318,262, this patent claims a
suction cup made up of two or more layers that are attached
to each other: a pliable bottom layer and a harder upper
“shell” that fits over the bottom piece. When the suction
cup is placed against a surface and pressure applied, the
two pieces press together and create suction against the
mounting surface. The invention provides “maximum memory
for improved surface contact, longer life and reduced cost.”
The patent describes several embodiments of the multiple
layer suction holder; however, none of them appear to
include concentric rings on the outer (“shell”) surface
layer. Accordingly, this patent is not particularly
probative.

12 Specifically, claim 4 states, “said improvement comprising a
plurality of surface deformations provided in said convex
exterior surface of said cup portion such that light rays passing
through said suction cup will not converge at a single focal
point.” We note that an alternate embodiment, which diffuses
light by having “grooves” instead of “ridges” and which is shown
in FIGS. 5 and 6, is also encompassed by the claims, specifically
claim 5.
13 In his February 22, 2011, declaration, Mr. Adam states that
Patent No. 5039045 describes a modification to the suction cup
that provides a “flange that extends out from the base of the
head. Such a flange would create the double ring configuration
similar [to the applied-for mark].” This modification does not
appear to be represented by a drawing. The fact that Mr. Adams
has identified this modification as creating a double-ring
configuration does not mean that none of the other embodiments
also creates a double-ring configuration. Moreover, this
modification is encompassed by claim 4.
Serial No. 85025503
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Applicant has made design patent Des. 340,181 of
record. This patent claims “the ornamental design for a
suction cup” as shown:

The court in Morton-Norwich stated that when a party
owns a design patent, this “at least presumptively,
indicates that the design is not de jure functional.”
Morton-Norwich, 213 USPQ at 11, n. 3 (citations omitted).
However, the “existence of a design patent, while some
evidence of non-functionality, is not alone sufficient
evidence.” In re American National Can Co., 41 USPQ2d 1841,
1843 (TTAB 1997). See also, In re Caterpillar, Inc., 43
USPQ2d 1335, 1339 (TTAB 1997) (“The fact that a
configuration design is the subject of a design patent, as
in this case, does not, without more, establish that the
design is non-utilitarian and serves as a trademark.”). Any
design feature will be somewhat ornamental, just as any
useful object will have some utilty; the question is
whether, on balance, the design is merely ornamentation
incidental to the overall purpose of the article or whether
it “adopts a significant portion of the invention disclosed
in the patent.” Valkenburgh, 97 USPQ2d at 1760-61. Here,
Serial No. 85025503
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the ornamental nature of the concentric rings, as shown by
the design patent, is outweighed by Patent No. 5,039,045’s
disclosure of the utilitarian advantages of the design.
On balance, this Morton-Norwich factor strongly favors
a finding of de jure functionality.14
Advertising Touting the Mark’s Utilitarian Features
The second evidentiary factor concerns any advertising
materials that tout the utilitarian advantages of the
design. An applicant’s own advertising promoting the
utilitarian aspects of its product design is strong evidence
supporting a functionality refusal. Valkenburgh, 97 USPQ2d
at 1761. A review of applicant’s online advertising shows
that it clearly promotes the light-diffusing advantages of
the applied-for “concentric rings” design in applicant’s
suction cups. The below, taken from one of applicant’s web
pages15 is illustrative:

14 We note that the examining attorney has advanced a second
reason for finding applicant’s design to be functional: that to
the extent the concentric rings are ridges on the surface of the
suction cup, they thicken the suction cup, which strengthens its
grip, making it less likely that it will collapse. We have not
relied on this argument in holding that the design is functional,
as it is unnecessary to our decision.
15 At http://www.adamsmfg.com, Office action August 18, 2010.
Serial No. 85025503
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According to the website, the Adams Suction Cup shown
at right is covered by “US Patent # 5,039,045.”16 The
advertising copy underneath the drawings mentions
applicant’s “exclusive, patented light diffusing ring.”
The number of rings on a given suction cup are a
consequence of the size of the cup. Small, mini and medium-
size suction cups display one ring; the large and “giant
suction cup wreath holder” display two concentric rings.
Both adaptations employ the same scientific principle that
bent light rays diffuse light, and in the description of
each of the small, mini, medium and large-size products,
applicant has included the following sentence: “Patented
light diffusing rings prevent focused light from damaging
interiors, while the superior material resists yellowing.”17
The fact that applicant’s own advertising flaunts the
utilitarian features of the design sought to be registered

16 At http://www.suctioncups.com, Office action August 18, 2010.
17 At www.adamsmfg.com, Office action August 18, 2010.
Serial No. 85025503
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supports a finding that there is a competitive need to copy
the design and that the design is de jure functional.
Availability of Alternative Designs
“[O]nce a product feature is found functional based on
other considerations there is no need to consider the
availability of alternative designs, because the feature
cannot be given trade dress protection merely because there
are alternative designs available. But that does not mean
that the availability of alternative designs cannot be a
legitimate source of evidence to determine whether a feature
is functional in the first place.” Valu Engineering, 61
USPQ2d at 1427. “If the feature asserted to give a product
distinctiveness is the best, or at least one, of a few
superior designs for its de facto purpose, it follows that
competition is hindered.” In re Bose, 227 USPQ at 6. It
is, however, unnecessary to show that competition has been
entirely eliminated. Id.
The evidence of record shows that there are only a
limited number of other designs available for making suction
cups. The examining attorney submitted copies of web pages
advertising a variety of suction cups, arguing that these
show that other entities are making suction cups with
ridges,
Serial No. 85025503
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presumably because of the functional advantages
of doing so, as demonstrated by the attached
evidence from thatpetplace.com, showing the
Customflo suction cup for sale featuring
concentric circles/ridges, and Amazon.com showing
the Timex suction cup Hygrometer, Aqua Logic
suction cups, and ABC Products suction cups for
sale with ridges/rings.18

However, Mr. Adams contends in his declaration that all
but one of these websites are actually advertising
applicant’s own product,19 and that the one which is not (the
Timex suction cup Hygrometer) is designed for an entirely
different purpose.20 Mr. Adams further states that
applicant’s suction cups are repackaged and sold by third
parties in connection with another product, such as “bird
feeders, thermometers, EZ-Pass holders and a variety of
other products that are hung on windows.”21 With the January
11, 2011, Office action, the examining attorney further
submitted a copy of a webpage from www.parkingid.com that
advertises suction cups with ridges. Again, Mr. Adams
states that “the suction cups pictured on that web page were
made by Adams Mfg.”22 and provides an invoice showing the

18 Office action August 18, 2010.
19 Response to Office action, November 5, 2010; Adams October 1,
2010, Dec., p. 2 (unnumbered) (“Other than our products, there
are no suction cups having a ring or rings on the cup portion of
the suction cup on the market in the United States today.”)
20 Id., p. 4 (unnumbered).
21 Id., p. 1 (unnumbered).
22 Adams February 22, 2011, Dec., p. 2.
Serial No. 85025503
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sale of suction cups from applicant to the entity operating
the “parkingid” website.
As to the evidence attached to the Office action
denying applicant’s request for reconsideration, these
consist of copies of numerous third-party websites
advertising a wide variety of products that utilize suction
cups to adhere to a surface (such as a shower mat, a bird
feeder, a bathroom mirror, suncatchers and bath toys). They
show three basic designs: plain suction cups, cups with
concentric rings (all or some of which may be applicant’s
products), and a single cup with radial ridges. This
evidence does not establish that a variety of alternative
designs are available.
We are also cognizant of the information disclosed in
the patents regarding other variations that can be used on
suction cups to diffuse light – such as “roughing up” the
surface or using colored, opaque or semi-opaque surfaces –
and that none of these variations has been shown to be in
use. The evidence also does not show that others are making
suction cups that use “other non-circular projections or
depressions on the outer surface of the suction cup” or “a
filler material in the polyvinyl chloride or other clear
Serial No. 85025503
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plastic from which the suction cup is made” to diffuse
light, as Mr. Adams posited in his declaration.23
Thus, viewing the evidence in toto, while applicant has
conceptualized a variety of alternative methods for
diffusing light, the evidence shows that there are only a
limited number of other available designs actually in use.
We find that for its de facto purpose, the “concentric
rings” design appears to be superior to other design
options. It follows that this Morton-Norwich factor favors
a finding of functionality.
Comparative Methods of Manufacture
According to Patent No. 5,039,045, the preferred
embodiment of the invention, which includes only a single
ridge along the rim of the suction cup, “provides the
easiest such suction cup to mold.” However, the record
shows that making a suction cup with more than one ring,
with multiple ridges, or by roughing the surface, is equally
easy to make. Mr. Adams explains the process:
Suction cups are usually made by injection
molding using a two piece mold. The mold
cavities in our molds are configured to provide
the desired rings on the cup surface. The same
molding technique can be used to make all of the
alternative suction cups…. While the surface of
the mold cavities would be different for each
alternative, the cost of the mold for each
alternative would be the same or nearly the same

23 Adams October 1, 2010, Dec., p. 3 (unnumbered).
Serial No. 85025503
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as the cost of the same size mold to make a
suction cup having concentric rings similar to
the applied-for trademark.24

In his second declaration, Mr. Adams again confirms
that “suction cups with a roughened surface, as well as
suction cups with ribs, projections of other geometric
shapes, surface grooves or other depressions are equally
effective in diffusing light and no more costly than
providing concentric rings on the cup portion of the suction
cup.”25 Donald French, an employee of Sandur Coromant with
24 years of experience in mold making and mold design,
describes in his declaration several possible alternatives
for making suction cups that diffuse light, and states that
the “total cost to manufacture each alternative would be the
same or nearly the same as the cost to make a suction cup of
similar size having concentric rings similar to the applied-
for trademark.”26
Thus, the evidence does not show that the design of
applicant’s suction cups are the result of a comparatively
simple or cheaper method of manufacturing. The fourth
Morton-Norwich factor does not demonstrate that such design
is de jure functional, and weighs in applicant’s favor.
Balancing the Factors

24 Adams October 1, 2010, Dec., p. 3 (unnumbered).
25 Adams February 22, 2011, Dec., p. 4.
26 French March 30, 2011, Dec., p. 3 (unnumbered).
Serial No. 85025503
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On balance, the presence of an utility patent directed
specifically to the elements of applicant’s subject design,
applicant’s advertising touting the utilitariain features of
the design, and the limited number of alternative designs on
the market, are strong indicators of a superior design which
others should be permitted to copy in order to compete
effectively. These factors outweigh the fact that the
design does not appear to be the result of a cheaper method
of manufacturing, or that its features may also be covered
by a design patent. Further, the existence of applicant’s
prior registration, No. 3339265, is not determinative. At
oral hearing, applicant argued that this prior registration
was evidence that the applied-for mark is not de jure
functional. The examining attorney noted that the
configuration appears to be as functional in nature as the
applied-for design. Suffice it to say, each case must be
decided on its own facts; we cannot second-guess the record
in that proceeding. As has been often stated, we are not
bound by the prior decisions of examining attorneys in other
cases. See In re Nett Designs Inc., 236 F.3d 1339, 57
USPQ2d 1564, 1566 (Fed. Cir. 2001).
In reviewing the Morton-Norwich functionality factors,
we find that the proposed mark is functional.
Nondistinctive Product Design Refusal
Serial No. 85025503
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Our holding that the design sought to be registered is
functional bars registration, regardless of any showing of
acquired distinctiveness. However, for purposes of
completeness, we shall decide the alternative refusal that
applicant’s proposed mark has not acquired distinctiveness
pursuant to Section 2(f) of the Trademark Act of 1946.
The examining attorney argues that “applicant’s rings
or ridges on its suction cups are not inherently distinctive
because nothing about them will lead consumers to associate
them with a particular source. They are a nondescript
and barely noticed element of the product.”27 In response,
applicant states that it “does not allege that concentric
rings are inherently distinctive,” but rather argues that
its mark has acquired distinctiveness “through a long period
of continuous exclusive use.”28 We may therefore view
applicant’s claim to the benefits of Section 2(f) as a
concession that the concentric rings design is not
inherently distinctive. In re Reed Elsevier Properties
Inc., 77 USPQ2d 1649, 1651 n. 3 (TTAB 2005), aff’d 482 F.3d
1376, 82 USPQ2d 1378 (Fed. Cir. 2007). To be registrable,
the design must be shown to have acquired distinctiveness

27 Office action, August 18, 2010.
28 Applicant’s Brief, p. 4.
Serial No. 85025503
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There is a heavy burden on an applicant to prove
acquired distinctiveness in a product configuration case.
In re Gibson Guitar Corp., 61 USPQ2d 1948, 1951 (TTAB 2001).
See also, Yamaha International Corp. v. Hoshino Gakki Co.,
840 F.2d 1571, 6 USPQ2d 1001, 1008 (Fed. Cir. 1988); and In
re Ennco Displays Systems Inc., 56 USPQ2d 1279, 1284 (TTAB
2000)(“While there is no fixed rule for the amount of proof
necessary to demonstrate acquired distinctiveness, the
burden is heavier in this case because it involves product
configurations.”). As the Board explained in Ennco, at 56
USPQ2d 1283, to establish acquired distinctiveness,
an applicant must show that the primary
significance of the product configuration in the
minds of consumers is not the product but the
producer. Acquired distinctiveness may be shown
by direct and/or circumstantial evidence. Direct
evidence includes actual testimony, declarations
or surveys of consumers as to their state of
mind. Circumstantial evidence, on the other
hand, is evidence from which consumer association
might be inferred, such as years of use,
extensive amount of sales and advertising, and
any similar evidence showing wide exposure of the
mark to consumers. (internal citations omitted).

As evidence from which consumer association might be
inferred, applicant has submitted the declaration of
Jennifer Dosch, applicant’s Marketing Manager, who states
that applicant:
has been using packaging and brochures which
prominently show the two concentric rings design
on suction cups for over fifteen years. Each
Serial No. 85025503
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year Adams spends approximately $4,900.00 on
product sheets and brochures for its suction cups
similar to Exhibits 1, 2, and 9. Adams also
spends approximately $24,000.00 dollars for each
year for packaging for its suction cup products.
…
Adams has been selling suction cups with the two
concentric rings since 1990. Our sales of those
suction cups over the past twenty years has been
approximately $10,300,000.00. We estimate that
over eighty-five million suction cups with the
two concentric rings design have been sold.

Exhibits 1, 2, and 9 of Ms. Dosch’s declaration
are, respectively, applicant’s current brochure for
“Adams Safety Suction Cups”; page 9 from “Adams
‘functionality’ brochure”; and a “product sheet”
labeled “2010 Catalog.” Each of these exhibits
contains pictures of applicant’s suction cups. The
cups have either one or two concentric rings on their
outer surface. There is no “look for” advertising on
any of these exhibits. On the other hand, exhibits 7
and 8, which also include photos of the actual suction
cups, mention the “Light-Diffusing Rings” designed to
“prevent surface damage.” This usage promotes the
functional purpose of the concentric rings, which
“undermines” a finding of acquired distinctiveness.
Ennco, 56 USPQ2d at 1285, citing Thomas & Betts Corp.
v. Panduit Corp., 65 F.2d 654, 662, 36 USPQ2d 1065,
1071-72 (7th Cir. 1995).
Serial No. 85025503
- 22 -
Applicant further produced three declarations
from individuals who have been involved in the
“purchase, sale and use of suction cups” for 12-21
years: Bruce Jarzmik, president of Bruce C. Jarzmik
and Associates, 12 years; Patrick Rosauer, applicant’s
sales representative, 21 years; and Steve Feldstein,
sales representative for Omega Marketing, 20 years.
The declarants state that applicant is the only
manufacturer or seller of suction cups with concentric
rings, and that “[w]henever I see a suction cup having
concentric rings I understand that this suction cup
was made by Adams Mfg.” These declarations are of
limited probative value in showing that the purchasing
public has come to view the design as a trademark,
however, inasmuch as none of the declarants represents
the purchasing public. See Ennco, 56 USPQ2d at 1284
(“the statements made by distributors concerning
acquired distinctiveness are of minimal value because
they are not the ultimate consumers of applicant’s
products.”). One of the declarants is a sales
representative for applicant; the other a third-party
sales representative; and Mr. Jarzmik is president of
his own company. While we may assume he purchases
applicant’s suction cups, the declaration does not
Serial No. 85025503
- 23 -
clarify whether he does so as an ultimate purchaser or
as a reseller. Even as an ultimate purchaser, a
single declaration from a customer is of de minimis
value. Although the declarants also state that
“others who purchase suction cups recognize Adams
suction cups by the concentric rings on the cup
portion,” such statements are hearsay and cannot be
relied on for the truth of the matter asserted.
Applicant has failed to meet its heavy burden to
show that the concentric rings design has acquired
distinctiveness. There is no evidence of media
recognition of applicant’s mark, unsolicited
endorsements, or information as to the amount of
advertising or applicant’s advertising expenses. The
expenses that have been described, for packaging,
product sheets and brochures, do not appear to be
large amounts. And while applicant’s length of use of
its mark is not insignificant, the record does not
reveal applicant’s market share. We are thus unable
to discern whether applicant’s long use of its mark
has had an impact on prospective buyers, particularly
in the absence of any “look for” advertising. Cf.
Ennco, 56 USPQ2d at 1286 (7 to 17 years of use
insufficient).
Serial No. 85025503
- 24 -
In sum, applicant has not shown that the
purchasing public would recognize the concentric rings
design as being a trademark. The design is not
inherently distinctive and has not been shown, by this
record, to have acquired distinctiveness.
Decision: The refusals to register applicant’s
product design on the grounds that it is de jure
functional, not inherently distinctive, and has not
acquired distinctiveness, are affirmed.