Converter Manufacturing, LLC

Trademark Trial and Appeal Board

Sep 14, 2021

87587855 (T.T.A.B. Sep. 14, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 14, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Converter Manufacturing, LLC
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Serial No. 87587855
_____

John J. O’Malley of Volpe and Koenig PC for Converter Manufacturing, LLC.

Gene V. J. Maciol, II, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.
_____

Before Mermelstein, Larkin, and Allard,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Converter Manufacturing, LLC (“Applicant”) seeks registration on the Principal
Register or, alternatively, on the Supplemental Register, of the proposed mark shown
below for “Rigid plastic overwrap trays for packaging of uncooked meats,” in
International Class 21:
Serial No. 87587855
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1
Applicant’s amended description of its claimed mark reads as follows: “The mark
consists of the color translucent/clear as applied to overwrap rigid meat packaging
trays, and the matter shown in broken lines is not part of the mark and serves only
to show the position or placement of the mark.” The color translucent is claimed as a
feature of the mark.
To better illustrate the claimed mark as used in connection with the goods
identified in the application, we reproduce Applicant’s specimen of use below:

1 Application Serial No. 87587855 was filed on August 29, 2017 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of first use of the mark and
first use of the mark in commerce at least as early as August 4, 2016.
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The Trademark Examining Attorney has refused registration of Applicant’s
claimed mark on either the Principal Register or the Supplemental Register on the
grounds that (1) the claimed mark is functional under Section 2(e)(5) of the
Trademark Act, 15 U.S.C. § 1052(e)(5); (2) the claimed mark is a color and thus is not
inherently distinctive, and has not acquired distinctiveness under Section 2(f) of the
Trademark Act, 15 U.S.C. § 1052(f); and (3) Applicant failed to respond to all of the
Examining Attorney’s requests for information under Trademark Rule 2.61(b), 37
C.F.R. § 2.61(b).
When the Examining Attorney made the refusals final, Applicant appealed and
advised the Board that it had filed a request for reconsideration of the final refusals,
which resulted in the suspension of the appeal. Applicant had not requested
reconsideration, however, and the appeal was subsequently resumed. Applicant and
the Examining Attorney have filed briefs.2
The information request refusal is moot because we find that the Examining
Attorney withdrew it by failing to address it in his brief. We affirm the refusal based
on the ground that the claimed mark is not inherently distinctive and has not
acquired distinctiveness because Applicant did not address that refusal in its brief.
We affirm the functionality refusal on the merits.

2 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page(s) of the docket entry where the cited materials appear.
Applicant’s appeal brief appears at 13 TTABVUE and the Examining Attorney’s brief
appears at 15 TTABVUE.
Serial No. 87587855
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I. Prosecution and Procedural History, and Record on Appeal3
We summarize the prosecution history of Applicant’s application and the
procedural history of this appeal because they provide useful background to our
analysis of the issues.
A. Prosecution History and Record on Appeal
Applicant initially applied to register its claimed mark on the Principal Register
for goods identified as “Overwrap meat packaging trays.”4 Applicant’s original
description of its claimed mark read as follows:
The mark consists of a translucent overwrap meat
packaging tray. Translucence is claimed as a feature of the
mark. The dotted lines are intended to show the position of
the mark on the goods, and are not claimed as a feature of
the mark but are for illustrative purposes only. No claim is
made to the design or shape of the overwrap meat
packaging tray itself.5
The Examining Attorney refused registration on the grounds that the claimed
mark was functional, and that it was a color and thus was not inherently distinctive
and ineligible for registration on the Principal Register absent a showing that it had
acquired distinctiveness under Section 2(f).6 The Examining Attorney also requested
certain information from Applicant pursuant to Trademark Rule 2.61(b), 37 C.F.R.
§ 2.61(b), as well as a description of the mark and an amendment to the identification

3 Citations in this opinion to the application record are to pages in the Trademark Status &
Document Retrieval (“TSDR”) database of the United States Patent and Trademark Office
(“USPTO”).
4 August 29, 2017 Application at TSDR 1.
5 Id.
6 February 16, 2018 Office Action at TSDR 1.
Serial No. 87587855
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of goods.7 The Examining Attorney made of record what he described as “examples of
clear/transparent/translucent overwrap used for meat packaging,”8 and “packaging
trays in a variety of colors.”9 With respect to the refusal based on lack of
distinctiveness, the Examining Attorney offered Applicant the options of showing
acquired distinctiveness for registration on the Principal Register or seeking
registration on the Supplemental Register.10
Applicant responded and argued against the functionality refusal.11 Applicant
also denied that the claimed mark was not inherently distinctive, but claimed that
the mark had acquired distinctiveness “through Applicant’s use of the mark under
section 2(f).”12 Applicant responded to the Examining Attorney’s information request
by stating that “[t]he translucent nature is the result of the manufacturing process,”
and that Applicant “is the originator of translucent meat trays,” and “offers trays in
other colors as well,”13 and by providing copies of Applicant’s advertising materials
for the goods identified in the application and photographs showing competitive
products in Applicant’s industry.14 Applicant did not amend its identification of goods
or its description of its claimed mark.

7 Id.
8 Id. at TSDR 1-56.
9 Id. at TSDR 1, 59-133.
10 Id. at TSDR 1.
11 August 16, 2018 Response to Office Action at TSDR 1.
12 Id.
13 Id.
14 Id. at TSDR 2-4.
Serial No. 87587855
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The Examining Attorney issued a second Office Action in which he stated that the
informalities regarding the identification of the goods and the description of the mark
had been satisfied.15 The Examining Attorney continued and maintained the
functionality and color mark refusals, denied Applicant’s claim of acquired
distinctiveness, and requested additional information from Applicant.16
Applicant responded to the second Office Action by amending the description of
its mark to read as follows: “The mark consists of the color translucent/clear as
applied to overwrap rigid plastic meat packaging trays, and the matter shown in
broken lines is not part of the mark and serves only to show the position or placement
of the mark.”17 Applicant also amended its application to seek registration on the
Supplemental Register in the alternative.18 Applicant argued against the
functionality refusal, provided responses to the Examining Attorney’s additional
requests for information,19 and made of record materials regarding absorbent pads
used to soak up liquids that are exuded by meats when they are stored in a package,20
and examples of clear/translucent tray products made by third parties.21

15 September 17, 2018 Office Action at TSDR 1.
16 Id.
17 March 18, 2019 Response to Office Action at TSDR 1.
18 Id. Applicant claimed that its amendment to the Supplemental Register obviated the color
mark refusal. Id. at TSDR 5.
19 Id. at TSDR 5-7.
20 Id. at TSDR 8.
21 Id. at TSDR 7, 9-19.
Serial No. 87587855
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The Examining Attorney issued a third Office Action in response to Applicant’s
amendment of its application to seek registration on the Supplemental Register. The
Examining Attorney refused registration on the Supplemental Register on the ground
that the applied-for mark is functional, and thus ineligible for registration on either
Register, and continued and maintained the functionality, color mark, and
information request refusals, arguing that Applicant had satisfactorily answered only
one of the three questions posed in the second Office Action.22 The Examining
Attorney made of record articles and webpages regarding the use of see-through food
packaging;23 webpages showing the use of transparent packaging “to impart an aura
or sense of being natural and wholesome for food items, and two examples of the color
clear/transparent/translucent used to package food items, including meat;”24 “many
examples of the color clear/transparent/translucent used for packaging meat;”25
Wikipedia entries and other webpages describing the liquid that “purges” from
uncooked meat;26 and a Wikipedia entry “suggest[ing] that the color
clear/transparent/translucent is a natural and/or cheaper result of the manufacturing
process and/or material used such that competitors would be materially
disadvantaged if Applicant was permitted exclusive use of the color.”27 The

22 March 25, 2019 Office Action at TSDR 1.
23 Id. at TSDR 2-34.
24 Id. at TSDR 1, 35-48.
25 Id. at TSDR 1, 49-67.
26 Id. at TSDR 68-75.
27 Id. at TSDR 1, 76-86.
Serial No. 87587855
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Examining Attorney also maintained and continued the refusal based on Applicant’s
failure to adequately respond to two of the three requests for information in the
previous office action.28
Applicant responded to the third Office Action by amending the identification of
goods to “Rigid plastic overwrap trays for packaging of uncooked meats,”29 arguing
against the functionality and lack of distinctiveness refusals, and providing further
information in response to the Examining Attorney’s requests.30
The Examining Attorney then issued a final Office Action accepting the
amendment to the identification of goods, and purporting to make final four refusals:
(1) a refusal to register Applicant’s claimed mark on the Supplemental Register
because it is a functional design for the goods; (2) a refusal to register Applicant’s
claimed mark (apparently on the Principal Register) because it is a functional design
for the goods;31 (3) a refusal to register Applicant’s claimed mark because it is a color
mark that is not inherently distinctive and has not acquired distinctiveness; and (4)
a refusal to register based on Applicant’s failure to adequately answer one of the three

28 Id. at TSDR 1.
29 September 25, 2019 Response to Office Action at TSDR 2.
30 Id. at TSDR 2-6.
31 Functional matter cannot be registered on either the Principal Register, 15 U.S.C.
§ 1052(e)(5) and (f), or the Supplemental Register. 15 U.S.C. § 1091(c) (“For the purposes of
registration on the supplemental register, a mark may consist of . . . any matter that as a
whole is not functional. . . .”). There was no need for the Examining Attorney to issue separate
refusals for each Register based on the functionality of the claimed mark.
Serial No. 87587855
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questions in the information request in the second Office Action.32 The Examining
Attorney again made of record an article about the use of transparent packaging.33
B. Procedural History of Appeal
Applicant stated in its Notice of Appeal that it had “filed a request for
reconsideration of the refusal to register, and request[ed] suspension of the appeal
pending consideration of the request by the Examining Attorney.” 1 TTABVUE 1. The
Board instituted and suspended the appeal, and remanded the application to the
Examining Attorney because “Applicant has checked the request for reconsideration
box on the ESTTA form, thereby indicating that it has filed or is filing today a request
for reconsideration of the final refusal to register.” 2 TTABVUE 1. The Board advised
Applicant that it “should notify the Board immediately if it has not filed a timely
request for reconsideration and does not intend to do so.” Id.
Shortly thereafter, however, the Board resumed the appeal because a “review of
the record indicate[d] that no request for reconsideration has been filed.” 4 TTABVUE
1. Applicant was allowed 60 days in which to file its appeal brief. Id. Applicant
subsequently sought and received four 60-day extensions of time to file its brief. 5-12
TTABVUE. Applicant ultimately filed a seven-page appeal brief on the last day for
filing under the fourth extension. 13 TTABVUE.
Applicant’s brief states that the sole issue on appeal is “Whether Applicant’s
Marks [sic] is Functional,” id. at 4, and Applicant addresses only that issue. Id. at 4-

32 November 12, 2019 Final Office Action at TSDR 1.
33 Id. at TSDR 2-4.
Serial No. 87587855
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8. There is no mention of the lack of distinctiveness refusal or the refusal based on
the information requests. The Examining Attorney notes in his brief that “Applicant’s
Appeal Brief only argues against the functionality refusal, not the additional refusals
and requirements made Final in the November 12, 2019 Office action.” 15 TTABVUE
4 n.4. The Examining Attorney proceeded to address the functionality and the lack of
distinctiveness refusals, but not the information request refusal. Applicant did not
file a reply brief.
II. The Refusals Remaining for Decision
“The filing of a notice of appeal has the effect of appealing all refusals or
requirements made final,” In re Harley, 119 USPQ2d 1755, 1757 (TTAB 2016), but
Applicant’s brief fails to address the refusals based on lack of distinctiveness and the
single remaining information request. In In re MK Diamond Prods., Inc., 2020
USPQ2d 10882 (TTAB 2020), the examining attorney similarly issued three final
refusals based on functionality, lack of distinctiveness, and “the ground that
Applicant did not adequately respond to a request for information,” id., at *1, n.2, but
the applicant only discussed the functionality and lack of distinctiveness refusals in
its brief. Id., at *1. The Board nevertheless considered the information request to
have been withdrawn because it was not pursued in the examining attorney’s brief.
Id., at *1 n.2 (quoting TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(“TBMP”) Section 1203.02(b) (“Even if the examining attorney does not specifically
state in the appeal brief that the refusal or requirement has been withdrawn, the
Board may treat the refusal/requirement to have been withdrawn if no mention is
Serial No. 87587855
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made of it in the brief.”)). Because the Examining Attorney on this appeal does not
address the single remaining information request in his brief, we similarly consider
it to have been withdrawn.
During prosecution, Applicant sought registration of its claimed mark on the
Supplemental Register in the alternative, but did not thereafter pursue registration
on the Principal Register through acquired distinctiveness under Section 2(f).
Because Applicant failed to address the lack of distinctiveness refusal on appeal, it
“has waived its appeal of the Examining Attorney’s refusal of registration on the
Principal Register.” In re Katch, LLC, 2018 USPQ2d 233842, at *1-2 (TTAB 2019)
(where applicant failed to address a final refusal that its mark was highly descriptive
and had not acquired distinctiveness, that refusal was affirmed by the Board and the
only refusal remaining for decision was a refusal of registration on the Supplemental
Register on the ground that the claimed mark was generic). Accordingly, we affirm
the refusal to register Applicant’s claimed mark on the Principal Register on the
ground that it is not inherently distinctive, and has not acquired distinctiveness,
because Applicant did not address that refusal in its brief.34 The only refusal
remaining for decision is the refusal of registration of Applicant’s claimed mark on
the Supplemental Register because it is functional.

34 As discussed below, we find that it is more appropriate to characterize Applicant’s claimed
mark as a feature of its product’s design rather than as a color, but that distinction is
ultimately immaterial with respect to the lack of distinctiveness refusal because “design, like
color, is not inherently distinctive.” Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 54
USPQ2d 1065, 1068 (2000).
Serial No. 87587855
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III. Functionality Refusal
A. Defining the Claimed Mark
We begin our analysis by considering exactly what it is that Applicant seeks to
register as its trademark. Although Applicant initially described its claimed mark as
consisting of “a translucent overwrap meat packaging tray” and stated that
“[t]ranslucence is claimed as a feature of the mark,” it amended the description at the
suggestion of the Examining Attorney to the “color translucent/clear as applied to
overwrap rigid meat packaging trays.”35 Both Applicant and the Examining Attorney
have subsequently characterized the claimed mark as a color.
Although Applicant’s product brochure shown and discussed below states that
Applicant’s “trays are available in multiple colors, including crystal clear,”36 it does
not appear proper to view the claimed mark as consisting of the “color
translucent/clear.” We take judicial notice that a “clear” substance “is one which you
can see through and which has no color.”37 See also In re Dolce Vita Footwear, Inc.,
2021 USPQ2d 478, at *2 & n.2 (TTAB 2021) (“clear” is defined as “‘easily seen
through; transparent’”). The word “clear” does not identify anything found on the
color spectrum, but instead signals the absence of color, in this instance the “see-
through” nature of Applicant’s goods.

35 August 16, 2018 Response to Office Action at TSDR 1.
36 Id. at TSDR 2.
37 COLLINS DICTIONARY (collinsdictionary.com, last accessed on September 13, 2021). “The
Board may take judicial notice of dictionary definitions, including online dictionaries that
exist in printed form or regular fixed editions.” In re OEP Enters., Inc., 2019 USPQ2d 309323,
at *7 n.29 (TTAB 2019).
Serial No. 87587855
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If Applicant’s claimed mark were truly a color, it would be possible for Applicant’s
competitors to register sufficiently different shades of that color for the same goods if
Applicant’s mark were registered on the Supplemental Register. See In re Medline
Indus., Inc., 2020 USPQ2d 10237 (TTAB 2020) (“the color green (Pantone 2274C)”
and “the color green Pantone 7488U” found to be sufficiently dissimilar to both be
registrable on the Supplemental Register for medical gloves).38 But we cannot
envision a different “shade” of “clear.” If Applicant obtains a registration of its claimed
mark on the Supplemental Register, its competitors would be limited to registration
of opaque overwrap rigid meat packaging trays. The essence of Applicant’s mark is
thus the transparent nature of its goods,39 not their “color,” and we will analyze
whether Applicant’s mark is functional by reference to that feature of Applicant’s
goods.

38 As the Board noted in Medline, color marks must be shown in a color drawing and described
in ordinary language, but the use of a commercial color identification system such as the
Pantone system “may be critical in accurately describing the mark and such third-party use
is an intended use of commercial color-identification-system terminology.” Medline, 2020
USPQ2d 10237, at *11 (quoting TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”)
Section 808.02). We are unaware of any color described as “clear” in the Pantone system.
39 It appears equally improper to view Applicant’s trays as “translucent,” which means
“letting light pass, but diffusing it so that objects on the other side cannot be clearly
distinguished; partially transparent, as frosted glass.” COLLINS DICTIONARY
(collinsdictionary.com, last accessed on September 13, 2021). Applicant describes its goods as
“crystal clear” trays, August 16, 2018 Response to Office Action at TSDR 2, and the Board
has held that “crystal” means “‘clear’ and ‘transparent.’” David Crystal, Inc. v. Helene Curtis
Indus., Inc., 168 USPQ 124, 125 (TTAB 1970). Applicant’s goods thus are more accurately
viewed as “transparent” because “[i]f an object or substance is transparent, you can see
through it.” COLLINS DICTIONARY (collinsdictionary.com, last accessed on September 13,
2021). Like “clear,” “transparent” is not a color.
Serial No. 87587855
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B. Applicable Law
Section 2(e)(5) of the Trademark Act prohibits registration of “a mark which . . .
comprises any matter that, as a whole, is functional.” 15 U.S.C. § 1052(e)(5).40 “‘A
product design or a product feature is considered functional in a utilitarian sense if:
(1) it is ‘essential to the use or purpose of the article,’ or (2) it ‘affects the cost or
quality of the article.’’” MK Diamond Prods., 2020 USPQ2d 10882, at *5 (quoting
TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 58 USPQ2d 1001, 1006
(2001) (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 214 USPQ 1, 4
n.10 (1982)).
“In making our determination of functionality under Inwood, we generally are
guided by the analysis first applied in” In re Morton-Norwich Prods., Inc., 671 F.2d
1332, 213 USPQ 9, 18 (CCPA 1982). MK Diamond Prods., 2020 USPQ2d 10882, at
*5. As the Board explained in MK Diamond Prods.,
Morton-Norwich identifies the following inquiries or
categories of evidence that may be helpful in determining
whether a particular design is functional: (1) the existence
of a utility patent disclosing the utilitarian advantages of
the design; (2) advertising materials in which the
originator of the design touts the design’s utilitarian
advantages; (3) facts indicating the availability to
competitors of functionally equivalent designs; and (4)
facts indicating that the design results in a comparatively
simple or cheap method of manufacturing the product. . . .

40 The Section 2(e)(5) bar to registration applies to registration on the Principal Register, but
as noted above, Section 23(c) prohibits registration of functional matter on the Supplemental
Register as well. “[T]he same legal principles and analysis apply to a determination of
functionality, whether on the Principal Register or Supplemental Register.” Kistner Concrete
Prods., Inc. v. Contech Arch Techs., Inc., 97 USPQ2d 1912, 1918 (TTAB 2011).
Serial No. 87587855
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Id. (citing TrafFix, 58 USPQ2d at 1006). “‘[T]here is no requirement that all of the
categories of evidence identified in Morton-Norwich appear in every case in order to’
find functionality.” MK Diamond Prods., 2020 USPQ2d 10882, at *17 (quoting In re
Change Wind Corp., 123 USPQ2d 1453, 1456 (TTAB 2017)).
C. Analysis of Functionality
The record establishes that transparent packaging is frequently used with foods,
including meats, because transparency provides the functional benefit of allowing
consumers to see the goods inside the packaging prior to purchase.41
The Examining Attorney made of record several webpages discussing the
functional benefits of transparent packaging of foods.42 Webpages at us-hs.com
discuss “See-Through Packaging” and state that “[s]ee-through packaging can boost
sales; more and more marketers are putting their products in packages that are see-
through or have see-through windows” because “[t]ransparency in packaging taps
into consumer desire for transparency about how food and beverages are produced,
both figuratively and literally,” and “[c]ompanies that are transparent about their

41 Applicant made of record webpages from sealedair.com that state that “[p]ackaging plays
a significant role in influencing a consumer’s decision on whether or not to purchase your
product,” that “the appearance of a package and its ability to attract a shopper’s attention
also plays a role in the decision-making process,” and that “33% of consumer purchases are
made solely based on packaging.” March 18, 2019 Response to Office Action at TSDR 16.
Applicant admitted during prosecution that Sealed Air and an Australian company sell
“clear/translucent tray products,” id. at 6, but dismissed them as “recent attempted
imitations of the Applicant’s goods for which registration of the applied-for mark is sought.”
Id. at 7.
42 March 25, 2019 Office Action at TSDR 3-48; November 12, 2019 Final Office Action at
TSDR 2-4. One of the websites displays an article by two professors at the University of
Oxford in the United Kingdom and an independent researcher. March 25, 2019 Office Action
at TSDR 14-34. Because there is no evidence of the extent of any exposure of the article to
United States consumers, we have not considered it in our decision.
Serial No. 87587855
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ingredients, sourcing, and business practices are reaping the benefits in consumer
goodwill and trust.”43 The webpages go on to state that “[n]early one-third of shoppers
(30%) gauge how fresh a product is by its appearance, rather than by its use-by date,”
and that “[c]lear packaging can help increase shoppers’ initial perception of food
freshness and demonstrates that what you see is what you get.”44 The webpages also
acknowledge that transparent packaging is hard to make and may expose food to
light, which degrades many foods,45 but they cite an academic study indicating that
“[m]ore than half of shoppers (54%) agree it’s important to see a product through its
packaging” and state that “[m]any manufacturers have taken note, and adjusted their
packaging accordingly, using clear film, product windows, or even edible
packaging.”46
A webpage at vuecraft.com addresses the “Advantages and Disadvantages of
Transparent Packaging,”47 and concludes that “[t]he benefits of clear packaging
outshine its disadvantages.”48 The webpage broadly describes the advantages as
“What you see is what you get,” “Durable, cheap, quality printing and finishing,” and
“Building trust,”49 and the disadvantages as “Effects of the sun” and “Clear packaging

43 March 25, 2019 Office Action at TSDR 9.
44 Id.
45 Id.
46 Id. at TSDR 10.
47 Id. at TSDR 12-13.
48 Id. at TSDR 12.
49 Id.
Serial No. 87587855
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might appear plain without additional printing.”50 The webpage states that the
disadvantages can be mitigated by avoiding direct sunlight and by inserting logos to
identify particular brands.51 The webpage displays a consumer comment that states
“I would prefer a transparent packaged product. I can actually see what I’m buying
and I feel like it shows the transparentness and honesty of the company!”52
The website at packagingtoday.com displays an article entitled “As Companies
Struggle to Redesign Food Packaging in the Face of Material Restrictions, NX
UltraClear PP Becomes the Clear Choice.”53 The article discusses the use of clear
polypropylene (PP) as a material for containers, clam shells, and trays.54 Citing THE
WALL STREET JOURNAL, the article states that among the benefits of PP is the fact
that “[c]lear packaging gives products an aura of being natural, something that more
shoppers are increasingly seeking.”55
The Examining Attorney also made of record numerous examples of the use of
some form of clear packaging in connection with uncooked meats. We display below
some examples of such packaging:

50 Id. at TSDR 13.
51 Id. The webpages display a consumer comment that “[f]ood in transparent packaging can
be protected by a cardboard cover or indoor displays.” Id.
52 Id.
53 Id. at TSDR 44-48.
54 Id.
55 Id. at TSDR 46.
Serial No. 87587855
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56

57

56 February 16, 2018 Office Action at TSDR 37 (all emphasis in materials in the record was
supplied by the Examining Attorney). Applicant’s rigid plastic overwrap trays hold the
uncooked meats and any absorbing pads, and are offered as substitutes for the foam trays
that typically hold the goods. August 16, 2018 Response to Office Action at TSDR 2.
57 February 16, 2018 Office Action at TSDR 37.
Serial No. 87587855
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58
59

58 Id. at TSDR 40.
59 Id. at TSDR 52.
Serial No. 87587855
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60
Applicant does not seriously dispute the functionality of transparent packaging
for food generally. Indeed, Applicant concedes that “the Examining Attorney’s
assertion [of functionality] might be accurate for fully-cooked meat products,” 13
TTABVUE 5, but claims that
it is inaccurate for packages used to contain uncooked
meats. Packers of uncooked meats seek trays which are
rigid and can contain both packed-meat and juices which
might issue from packed meat. In addition, such packers of
uncooked meats seek to obscure their customers’ view of
juices which issue from uncooked meats, whether the juices
be freely-flowing or contained within an absorbent pad
within the meat package. For this reason, meatpackers
who pack uncooked meats upon rigid trays seek to use
opaque trays, through which neither the juices nor a juice-
engorged pad can be viewed by their customers.
Id.

60 Id. at TSDR 127.
Serial No. 87587855
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Applicant further argues that its
employment of the color ‘clear/translucent’ is therefore
ANTI-functional, even in the context of meat-packers
displaying packaged uncooked meats to their customers.
More to the point of the current application, the Applicant’s
employment of the color ‘clear/translucent’ in rigid plastic
overwrap trays offered to uncooked-meat-packers defies
the common sense in this industry and is distinctive of the
Applicant’s trays only. The Examining Attorney previously
cited examples of meats (potentially including uncooked
meats) which were vacuum-packaged in clear or
translucent films. Apart from being outside the scope of
goods recited (such films are not “rigid plastic overwrap
trays”), meats that are vacuum-packaged in films do not
exhibit the disadvantages of overwrap tray-packed meat,
in that the vacuum-packaging process tends to trap both
meat and fluid in fixed locations within the package,
avoiding the issues (unsightly ‘sloshing fluid’ and/or fluid-
engorged-pad) that causes meat-packers to choose opaque
materials when using rigid trays. The Applicant
respectfully suggests that the Examining Attorney’s
citation of the clarity of vacuum-packaging films is no more
relevant to the functionality of a rigid plastic overwrap
meat tray than is the clear film with which known (opaque)
rigid plastic overwrap meat trays are typically wrapped.
Simply put, any ‘functionality’ inherent in the use of clear
plastic vacuum-packaging films is simply irrelevant in the
context of packaging uncooked meats atop rigid plastic
overwrap trays. If a packer of uncooked meats were to
consider clarity of a rigid plastic overwrap tray at all, the
packer would consider a clear/translucent tray LESS
functional, if anything, than a typical opaque tray.
Id. at 5-6.
Applicant also discusses the first three Morton-Norwich inquiries and concludes
that they show that its transparent feature is not functional. Id. at 6-8. Applicant
notes that there are no applicable patents, id. at 6, and argues that it “has not
distributed any advertising materials that promote the applied-for-mark as having
any utilitarian advantages over any other configuration design,” id. at 7, and that
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“the products/exhibits cited by the Examining Attorney in the Office Action61 make it
clear that there are many alternative designs for the trays.” Id. Applicant concludes
that the “translucent nature of the trays is not shown to be of any functional
advantage and the lack of any similar competing designs suggests that the applied-
for design is not functional, but is in fact unique when placed among its competitor’s
product.” Id.
The Examining Attorney rejects Applicant’s argument that the transparent
nature of its goods is “anti-functional” because not all meats “purge” juices, vacuum-
packed meats are not susceptible to “purging,” and “[m]eat packers that use rigid
overwrap trays for packaging meat would desire the color clear/translucent in order
to increase sales of the meat placed inside.” 15 TTABVUE 13. The Examining
Attorney also argues that the absence of applicable patents or advertising touting the
utilitarian advantage of Applicant’s claimed mark, and the availability of trays in
other colors, do not rebut his prima facie case because “functionality has been found
where use of the color yields a utilitarian or functional advantage, or a competitive
advantage,” id. at 14, and Applicant’s “mark is innately functional when used on
packaging for food items, and meat specifically.” Id. at 14-15.
There are three serious problems with Applicant’s arguments regarding the “anti-
functional” nature of its transparent packaging in the context of the uncooked meat-
packing industry. First, the underlying factual “assertions are unsupported by sworn

61 Applicant’s brief appears to be little more than a recapitulation of a response to one of the
several Office Actions, as it refers to “attached advertisements” and an “attached photograph”
that do not accompany the brief.
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statements or other evidence, and ‘[a]ttorney argument is no substitute for evidence.’”
OEP Enters., 2019 USPQ2d 309323, at *15 (quoting Cai v. Diamond Hong, Inc., 901
F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (internal citation omitted)). We
can give no weight to counsel’s arguments about the buying habits and state of mind
of meat packers in the absence of competent supporting evidence.
Second, Applicant’s arguments are counter-intuitive. Applicant would be acting
contrary to its own economic self-interest in offering transparent overwrap trays if
“packers of uncooked meats seek to obscure their customers’ view of juices which issue
from uncooked meats,” 13 TTABVUE 5, and “seek to use opaque trays, through which
neither the juices nor a juice-engorged pad can be viewed by their customers.” Id. It
would be irrational for Applicant to “def[y] the common sense in this industry,” id.,
by producing transparent trays rather than focusing solely on the production of
opaque trays to satisfy the claimed demand of meat packers for only such packaging.
Yet Applicant has not only developed its transparent packaging as an alternative to
opaque packaging, but has sought to register the transparent packaging as its
trademark. Applicant’s actions belie its claim that its product is “anti-functional.”
Third, and most importantly, Applicant’s arguments are also belied by its own
marketing brochure, which we reproduce below:
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62
Applicant’s brochure touts its product’s utilitarian benefits of “Clarity,” “Efficiency,”
and “Strength.” We display below an enlarged version of that portion of the brochure:

62 August 16, 2018 Response to Office Action at TSDR 2. Applicant subsequently clarified
that its products are “associated with the trade name ‘Clearly Clean Products.’” March 18,
2019 Response to Office Action at TSDR 6.
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63
Under the benefit captioned “Clarity,” Applicant’s brochure states that its “crystal
clear” color “allows you to make your product the STAR of the package,” a clear
reference to the fact that the transparent nature of this particular overwrap tray in
Applicant’s product line enables the packers’ customers, the ultimate consumers of
the uncooked meats, to see the products prior to purchase. This is precisely the
functional benefit of see-through packaging that is demonstrated by the record.
Applicant’s discussion of this benefit clearly shows that contrary to Applicant’s
unsupported arguments, at least some meat packers want to make their meats “the
STAR of the package” by showing the goods to their customers, and for those packers,
Applicant touts the transparent nature of its goods as a functional benefit.
“‘If a seller advertises the utilitarian advantage of a particular feature of its
product, this constitutes strong evidence of functionality.’” MK Diamond Prods., 2020
USPQ2d 10882, at *17 (quoting Kistner Concrete Prods., 97 USPQ2d at 1924).
Applicant’s brochure advertises the functional benefits of the transparency of its
“crystal clear” trays, and we find that the brochure persuasively demonstrates that
Applicant’s claimed mark is functional because “it is essential to the use or purpose”
of the trays in displaying the packers’ uncooked meat products to their ultimate
consumers in a manner in which the goods can be viewed prior to purchase. Id., at *5

63 Id.
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(quoting TrafFix, 58 USPQ2d at 1006). Accordingly, we need not address the other
Morton-Norwich categories of evidence because “the Supreme Court has made clear
that if functionality is established under Inwood, further inquiry into facts that might
be revealed by a full analysis of all types of Morton-Norwich evidence will not change
the result.” Id. (citing TrafFix, 58 USPQ2d at 1006). Because Applicant’s claimed
mark is functional, it is ineligible for registration on the Supplemental Register.
Decision: The refusal to register Applicant’s claimed mark on the Principal
Register because it is not inherently distinctive and has not acquired distinctiveness,
and the refusal to register Applicant’s claimed mark on the Supplemental Register
because it is functional, are affirmed.