Creative Edge Design Group, Ltd.

Trademark Trial and Appeal Board

May 9, 2019

87287662 (T.T.A.B. May. 9, 2019)

This Opinion is a
Precedent of the TTAB

Hearing: January 24, 2019 Mailed: May 9, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Creative Edge Design Group, Ltd.
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Serial No. 87287662
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Sandra M. Koenig and Brendan J. Goodwine of Fay Sharpe LLP
for Creative Edge Design Group, Ltd.

Jonathan R. Falk, Trademark Examining Attorney, Law Office 111,
Chris Doninger, Managing Attorney.
_____

Before Kuhlke, Greenbaum and Goodman
Administrative Trademark Judges.
Opinion by Kuhlke, Administrative Trademark Judge:
Creative Edge Design Group, Ltd. (Applicant) seeks registration on the Principal
Register of the trade dress shown below for “milk,” in International Class 29.1

1 Application Serial No. 87287662 filed on January 3, 2017, based upon Applicant’s
allegation of first use and first use in commerce on January 11, 2002 under Section 1(a) of
the Trademark Act, 15 U.S.C. § 1051(a).
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The mark is described as follows:
The mark consists of a three-dimensional configuration of
product packaging in the form of a bottle. The bottle is
generally cuboidal in shape and has a substantially flat
and square shaped top surface and generally flat sides. A
handle forms the upper part of the corner defined by two
of the side walls and extends to the flat top surface of the
bottle. The matter shown in phantom lines is not claimed
as a feature of the mark.
Color is not claimed as a feature of the mark.
The Examining Attorney has refused registration under Section 2(e)(5), 15
U.S.C. § 1052(e)(5), on the ground that the proposed mark is functional. When the
refusal was made final, Applicant appealed and requested reconsideration. After the
Examining Attorney denied the request for reconsideration, the appeal was
resumed, and an oral hearing was held on January 24, 2019. We affirm the refusal
to register.
I. Functionality
Under the statute, functional matter is unregistrable. 15 U.S.C. § 1052(e)(5) (“No
trademark by which the goods of the applicant may be distinguished from the goods
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of others shall be refused registration on the principal register on account of its
nature unless it … (e) Consists of a mark which … (5) comprises any matter that, as
a whole, is functional”). Matter 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.” TrafFix Devices Inc. v.
Marketing Displays Inc., 532 U.S. 23, 58 USPQ2d 1001, 1006 (2001) (citation
omitted). “To support a functionality rejection in proceedings before the Board, the
PTO examining attorney must make a prima facie case of functionality, which if
established must be rebutted by ‘competent evidence.’” In re Becton, Dickinson and
Co., 675 F.3d 1368, 102 USPQ2d 1372, 1376 (Fed. Cir. 2012) (quoting In re Teledyne
Indus., 696 F.2d 968, 217 USPQ 9, 11 (Fed. Cir. 1982)). In making our
determination of functionality we apply the test first set forth in In re Morton-
Norwich Products, Inc., 740 F.2d 1550, 213 USPQ 9 (CCPA 1982). See Becton,
Dickinson and Co., 102 USPQ2d at 1377, (citing Morton-Norwich, 213 USPQ at 15-
16). These factors are not exclusive, however, for functionality “depends upon the
totality of the evidence.” Valu Engineering Inc. v. Rexnord Corp., 278 F.3d 1268, 61
USPQ2d 1422, 1424 (Fed. Cir. 2002). Morton-Norwich identifies the following
factors to be considered 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) 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. Morton-
Serial No. 87287662
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Norwich, 213 USPQ at 15-16. It is not required that all four factors be proven in
every case, nor do all four factors have to weigh in favor of functionality to support a
refusal. Nevertheless, in reaching our decision, we will review all four factors. See
AS Holdings, Inc. v. H & C Milcor, Inc., 107 USPQ2d 1829, 1833 (TTAB 2013).
A. Utility Patent
With regard to the first factor, the existence of a utility patent “is strong
evidence that the features claimed therein are functional” and “[w]here the expired
patent claimed the features in question, one who seeks to establish trade dress
protection must carry the heavy burden of showing that the feature is not
functional, for instance by showing that it is merely an ornamental, incidental, or
arbitrary aspect of the device.” TrafFix, 58 USPQ2d at 1005. Moreover, “statements
in a patent’s specification illuminating the purpose served by a design may
constitute equally strong evidence of functionality.” Becton, Dickinson and Co., 102
USPQ2d at 1377.
The Examining Attorney relies on United States Patent No. 6068161 owned by
Applicant, for “Stackable, Thin-walled Containers Having a Structural Load
Distributing Feature Permitting Caseless Shipping” as shown in the drawing
below.2

2 March 30, 2017 Office Action at 2-49. Citations to the record are to the Trademark Status
and Document Retrieval (TSDR) database.
Serial No. 87287662
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The Examining Attorney and Applicant disagree as to whether the patent claims
the specific design features at issue. Applicant contends that its expired patent does
not “discuss the utilitarian advantages of the cuboidal shape, size, and appearance
of the packaging design shown in Applicant’s Mark.” Reply Br. 10 TTABVUE 3.
Applicant further explains that the “‘central advance’ of the 161 Patent is the
structural load distributing features that transfer loads from the top surface to the
base, which allows for the containers to be efficiently stacked on top of one another.”
Id. at 4. But here, Applicant asserts, it “does not seek to protect these features or to
prevent competitors from the legitimate use of such features outside of the utility
patent [and] [t]hese features, in fact, were removed in an amended drawing
submitted on April 24, 2018.” Id.
The abstract of the patent describes the patent as:3
A liquid container for a comestible product such as milk or
juice includes a base having a substantially planar region,
a top surface having a substantially planar region, a top
surface having a substantially planar region parallel to
the substantially planar region of the base and having a
pour spout. A sidewall is integrally formed with and
extends between the base and top surface, and includes a
structural load distributing feature that transfers loads
from the top surface to the base. A handle is interposed
between the base and top surface and integrally formed
with the base, top surface, and sidewall. The containers
can be arrayed into units and stacked on top of one
another.
The invention is summarized as follows:4

3 March 30, 2017 Office Action at 2.
4 Id. at 44-45.
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The present invention contemplates new and improved
containers which eliminate the need for cases or shippers
and which provide increased strength for supporting
static or dynamic vertical loads, thereby facilitating
stacking on pallets without the use of cases while
maintaining costs for manufacture.
While some of the patent claims concern the ribs that are not part of Applicant’s
claimed trademark (e.g., claims 2, 3, 4), many bear directly on the applied-for trade
dress, including a cuboidal shape:5
1. A molded plastic container used in caseless shipping of a
product, such as milk or juice, the plastic container comprising:
a base having a substantially planar region; a top surface having
a substantially planar load bearing region parallel to the
substantially planar region of the base; a sidewall integrally
formed with and extending between the base and top surface
generally parallel to a longitudinal axis of the container, the
sidewall enclosing an internal cavity; a pour spout disposed in
the top surface offset from the longitudinal axis of the container;
a handle extending from the sidewall and defining a finger
receiving region, the handle interposed between the base and
top surface and integrally formed with the base, top surface, and
sidewall; and a structural load distributing feature formed
therein for conveying bearing loads from the top surface to the
base.
5. The container of claim 1 wherein the sidewall includes a
series of side walls and selected ones of the sidewalls include
substantially planar regions for abutting against substantially
planar regions of sidewalls of like containers.
6. This container of claim 1 further comprising a rounded region
along an edge portion of the base beneath the pour spout to
facilitate pouring.
7. The container of claim 1 further comprising a structural load
distributing feature formed therein for conveying bearing loads
from the top surface to the base, the handle extending
downwardly from the top surface toward the base and the

5 Id. at 49.
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structural load distributing feature substantially aligned with
the handle for transferring loads from the handle to the base.
8. The container of claim 1 further comprising a resealable lid
operatively associated with the pour spout.
9. The container of claim 1 wherein the container is a thin-
walled material.
11. The container of claim 1 wherein the pour spout includes an
air opening disposed in spaced relation to a pour opening.
12. The container of claim 1 wherein the pour spout is disposed
opposite the handle adjacent an edge of the container.
13. The container of claim 1 wherein the pour spout is disposed
opposite the handle adjacent an edge of the container.
14. A blow-molded plastic dairy container comprising: a base
having a substantially planar load bearing region; a top surface
having a substantially planar load bearing region parallel to the
substantially planar region of the base and having a pour spout
spaced from the substantially planar region of the top surface
and disposed adjacent an edge of the top surface; a sidewall
extending between the base and top surface, the sidewall
enclosing an internal cavity in fluid communication with the
pour spout; a handle interposed between the base and top
surface; and a structural load distributing feature formed in at
least the sidewall for conveying bearing loads from the top
surface to the base.
16. The container of claim 14 wherein the handle is disposed at
a juncture of contiguous side wall portions and has a finger
receiving region.
17. The container of claim 14 wherein the handle is integrally
formed with the base, top surface, and sidewalls.
18. The container of claim 14 wherein the structural load
distributing feature is integrally formed in at least the sidewall.
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In addition, disclosures in the patent reference the cost effectiveness of
stackability in containers:6
The present invention relates generally to receptacles and
container structures. Specifically, the invention relates to
molded, thin-walled containers that are capable of being
stacked upon one another for storage and shipping
purposes. For the purpose of clarification, caseless
shipping is the ability to deliver products in a shipping
container which requires no returnable, disposable, or
replaceable cases. …
It is envisioned that caseless shipping would have
enormous benefits and labor savings associated with, for
example, the distribution … The current mode of
handling cases have a per unit distribution expense which
can be drastically reduced. Based on simple arithmetic, it
has been estimated that the improvement might be as
much as 30. … It would, therefore, be desirable to provide
a container structure which provides for stackability and
which eliminates the need for cases or shippers during
bulk transport. It would be further desirable to provide a
container structure which provides enhanced strength, as
well as the above-mentioned consumer benefits, without
adding to the material costs involved in its manufacture.
Figures 13 and 21 show embodiments very similar to the applied-for design:7
Fig. 13 Fig. 21

6 Id. at 43-44.
7 Id. at 12, 20.
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The patent discloses that “Fig. 36 shows a stacking arrangement for these types
of containers. The dimensions of the rectangular prism … are selected such that the
height of the container is preferably twice the width and depth of the container.
This construction lends itself to the stacking arrangement illustrated in Fig. 36.”8
We take judicial notice of the following definitions:9
Cuboidal: resembling a cube in form.
Cube: a solid bounded by six equal squares, the angle
between any two adjacent faces being a right angle.
Planar: of or relating to a geometric plane; flat or level.
Clearly, the cuboidal feature in Applicant’s design is directly described by the
following wording in the patent:
Claim 1. … a base having a substantially planar region; a
top surface having a substantially planar load bearing
region parallel to the substantially planar region of the
base; a sidewall integrally formed with and extending
between the base and top surface generally parallel to a
longitudinal axis of the container, the sidewall enclosing
an internal cavity …
Claim 5 The container of claim 1 wherein the sidewall
includes a series of side walls and selected ones of the
sidewalls include substantially planar regions for
abutting against substantially planar regions of sidewalls
of like containers.

8 Id. at 35, 47.
9 RANDOM HOUSE UNABRIDGED DICTIONARY (2019) retrieved from www.dictionary.com.
The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or regular
fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).

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Moreover, while such packaging could be in a square rather than rectangular
form, as shown above with Figure 36, the patent discloses that a rectangular form is
preferable.
The utility patent need not “claim the exact configuration for which trademark
protection is sought in order to undermine an applicant’s assertion that an applied-
for mark is not” functional. Becton, Dickinson and Co., 102 USPQ2d at 1377.
Rather, as noted above, “a patent’s specification illuminating the purpose served by
a design may constitute equally strong evidence of functionality.” Id. The claims set
forth above taken together with the disclosures and preferred embodiments reveal
the functionality of the design. The applied-for aspects in the application, “generally
cuboidal in shape,” “substantially flat and square shaped top surface,” “generally
flat sides” and “handle form[ing] the upper part of the corner defined by two of the
side walls and extend[ing] to the flat top surface of the bottle,” are all referenced in
the utility patent and are not “merely an ornamental, incidental, or arbitrary aspect
of the packaging.” TrafFix 52 USPQ2d at 1005. All aspects are functional, and the
sum of individually functional parts does not result in a protectable mark. The
patent claim includes any three dimensional rectangular shape; i.e., a cuboidal
shape. The utilitarian advantage of the cuboidal configuration is explicitly set out in
the patent; it facilitates stackability, which in turn, substantially reduces the costs
to distribute and sell milk.
We find the ’161 patent discloses the utilitarian advantages of the applied-for
packaging. Given the strong weight to be accorded patent evidence under TrafFix,
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we find that the patent is sufficient to establish prima facie that the design is
functional.
B. Advertising
Under this factor, we consider evidence regarding “advertising materials in
which the originator of the design touts the design’s utilitarian advantages.” Valu
Engineering v. Rexnord, 61 USPQ2d at 1426 citing Morton-Norwich, 213 USPQ at
15-16. The Examining Attorney submitted excerpts from news articles posted
during the release of Applicant’s milk jug on the market that contain photographs of
the applied-for mark and include claims of the benefits of the design. The
representative sampling from the Examining Attorney’s brief is reproduced below:
Attached evidence from Wikipedia that states: “Square
milk jugs are stackable and 9% more can be shipped in
the same space. [1] They also eliminate the need for milk
crates, which are required for traditional bell-shaped
jugs,” “Because more milk fits on each truck, shipping
costs can be reduced by half; this reduces the number of
trucks on the road each year by 11000 (US estimate).
Stores that required five shipments per week in
traditional containers now only require two, resulting in
lower fuel consumption. [4] Instead of being packed in
reusable crates, the square jugs are shrink wrapped for
shipment.” [Attachment to Final Office action dated
10/24/17 at page 2].
• Attached evidence from the New York Times that states:
“The jugs are cheaper to ship and better for the
environment, the milk is fresher when it arrives in stores,
and it costs less.” “Sam’s Club said that was a savings of
10 to 20 cents a gallon compared with old jugs.” “Today,
they bottle and ship two different ways. The old way is
inefficient and labor-intensive, according to members of
the family. The other day, a worker named Dennis
Sickafoose was using a long hook to drag plastic crates
loaded with jugs of milk onto a conveyor belt. The crates
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are necessary because the shape of old-fashioned milk
jugs prohibits stacking them atop one another. The crates
take up a lot of room, they are unwieldy to move, and
extra space must be left in delivery trucks to take empty
ones back from stores to the dairy. But with the new jugs,
the milk crates are gone. Instead, a machine stacks the
jugs, with cardboard sheets between layers. Then the
entire pallet, four layers high, is shrink-wrapped and
moved with a forklift.” “The company estimates this kind
of shipping has cut labor by half and water use by 60 to 70
percent. More gallons fit on a truck and in Sam’s Club
coolers, and no empty crates need to be picked up,
reducing trips to each Sam’s Club store to two a week,
from five — a big fuel savings. Also, Sam’s Club can now
store 224 gallons of milk in its coolers, in the same space
that used to hold 80.” [Attachment to Final Office action
dated 10/24/17 at page 3].
• Attached evidence from Daily Tech that states: “The
square design allows it to be packed more tightly saving
shelf space and shipping costs…On average they were
around 1- to 2-cents a gallon cheaper than traditional
jugs.” “Another benefit is that filling the jugs at the farm
processing facilities takes less labor as they can be
stacked. With traditional designs, crates were used during
filling and shipping, which were unwieldy and space
consuming. There were also sanitary concerns about the
crates used to transport the classic design.” [Attachment
to Final Office action dated 10/24/17 at page 4].
• Attached evidence from Serious Eats that states: “The
gallon milk container has a new look at Wal-Mart and
Costco—one that’s designed to cut shipping costs, be more
environmentally friendly, and keep milk fresher. It also
costs less, at $2.18 at one Sam's Club, down from $2.58.”
[Attachment to Final Office action dated 10/24/17 at page
5].
• Attached evidence from Sustainable is Good that states:
“The square jug packaging will help retailers significantly
reduce resources and materials used to package and
transport milk. The square container jug reduces waste
compared to the currently standard #2 HDPE gallon milk
jug which can only be stacked in layers if it’s inside
another plastic returnable case or a corrugated box.” “The
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square or case-less milk jugs do not require crates or
racks for shipping and storage. Instead, the newly
designed milk gallon is selfstacking.” [Attachment to
Final Office action dated 10/24/17 at page 6].
• Attached evidence from Adweek that states: “It’s a more
eco-friendly design that allows jugs to be stacked for
shipment instead of loaded into plastic crate.”
[Attachment to Final Office action dated 10/24/17 at page
7].
• Attached evidence from Environmental Leader that
states: “Wal-Mart says the new milk jugs require no
crates or racks for shipping and storage (which saves on
water to clean the racks and crates), and are self-stacking
because the spout is flatter and each gallon can rest on
another during transport, as well as while on display.”
“Trucks can also accommodate 4,704 more gallons per
truck or nine percent of their capacity. The jugs are
cheaper to ship and better for the environment. The milk
is fresher when it arrives in stores, and it costs less.
Sam’s Club says it is saving 10 to 20 cents a gallon.”
[Attachment to Final Office action dated 10/24/17 at page
8].
• Attached evidence from The Human Factor Blog that
states: “A square milk jug has lots of benefits; because of
its square shape, they stack more efficiently compared to
existing milk jugs. The shape makes it so that cartons of
milk won’t require milk crates. The net result is reduced
transportation costs.” [Attachment to Final Office action
dated 10/24/17 at page 8].
Applicant’s response to the evidence is to point out that it has applied for use in
connection with “milk” and not for the jug itself, so the advantages to the
distribution of the milk brought about by the jug’s shape are not functional for milk.
Applicant points to the commentary in the articles noting the difficulty in pouring
from this jug. In other words, its stacking functionality is complete once it arrives at
the store, and when the milk consumer arrives to buy milk, the appearance of the
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packaging, the “cuboidal” container, is inherently distinctive and perceived as a
trademark.
The fact that the configuration is for packaging for milk does not remove its
utilitarian aspect from the applied-for goods. The stackability feature is a
utilitarian advantage whether the applied-for goods are containers for milk or milk.
This advantage begins when the containers are filled with milk, and continues as
the milk is distributed to and then sold at the store. In In re Mars, Inc., 105
USPQ2d 1859 (TTAB 2013), the applicant applied for registration of the three-
dimensional configuration of packaging for “pet food.” The Board found it to be
generic, in part, because the attributes “permit[ed] stacking of containers.” Id. at
1866.
While this evidence is not Applicant’s advertising, it does tend to show consumer
exposure to the touting of these functional aspects, which supports a finding that
Applicant’s mark is functional.
C. Alternative Designs
Applicant argues that there are “a multitude of alternatives to the applied-for
configuration available to competitors” and submitted the following third-party
products as examples of alternative designs.10

10 April 24, 2018 Response at 4-5, 7.
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However, based on these pictures, it is not clear if they all have the same
caseless stackability feature, and they may have aspects that would not be
amenable to caseless stacking. These third-party examples do not strongly support
Applicant’s argument regarding the availability of other designs. Moreover, once
functionality is found based on other considerations, there is “no need to consider
the [third Morton-Norwich factor regarding] availability of alternative designs,
because the feature cannot be given trade dress protection merely because there are
alternative designs available.” Becton, Dickinson and Co., 102 USPQ2d at 1378. See
also TrafFix, 58 USPQ2d at 1006 (“Where the design is functional … there is no
need to proceed further to consider if there is a competitive necessity for the
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feature.”). The fact that other competitive alternatives may exist does not alter the
initial finding that the configuration is functional and, thus, unregistrable. See also
In re Bose Corp., 772 F.2d 866, 227 USPQ 1, 5-6 (Fed. Cir. 1985).
Accordingly, we conclude that the evidence of alternative designs does not
support a finding of non-functionality.
D. Cost of Manufacturing
The information regarding the comparative costs of manufacturing for different
designs resides with the Applicant. Applicant argues without evidentiary support
that “[i]n order to manufacture a milk container bearing the applied-for
configuration, a manufacturer must make significant changes to its existing
manufacturing and production lines, all at great expense.” The patent and articles
show that the cost advantage comes not from the manufacturing process, but
because the configuration provides “increased strength for supporting static or
dynamic vertical loads, thereby facilitating stacking on pallets without the use of
cases while maintaining costs for manufacture.”11 Thus, while the manufacturing
cost may not be less, the resulting product reduces costs for distributing and selling
milk. Overall we find that the record is not sufficient for us to make a determination
on this factor and we consider it neutral in our analysis. Moreover, even if the
container is not “comparatively simple or cheap” to manufacture, this does not mean
that the design is not functional. In re Dietrich, 91 USPQ2d 1622, 1637 (TTAB
2009); In re American National Can Co., 41 USPQ2d 1841, 1844-45 (TTAB 1997).

11 March 30, 2017 Office Action at 45.
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II. Analysis
As noted above, the statute prohibits registration of a configuration that, “as a
whole, is functional.” 15 U.S.C. §§ 1052(e)(5) and 1091(c). The record shows the
applied-for features, “generally cuboidal in shape,” “substantially flat and square
shaped top surface,” “generally flat sides” and “handle form[ing] the upper part of
the corner defined by two of the side walls and extend[ing] to the flat top surface of
the bottle,” are directed by utilitarian concerns to make distributing and selling
milk more efficient. Becton, Dickinson and Co., 102 USPQ2d at 1376. Applicant’s
container provides specific utilitarian advantages to milk in that it is stackable and
facilitates caseless shipping. See In re Bose Corp., 227 USPQ 1 (shape of
loudspeaker system enclosure that conforms to the shape of the sound matrix held
functional); Mars, Inc., 105 USPQ2d at 1059 (packaging for pet food functional due
to stacking attribute); In re Dietrich, 91 USPQ2d 162 (TTAB 2009) (spoke
arrangement of bicycle wheel more stable with better performance than wheels with
other spoke arrangements).
In short, the Examining Attorney has satisfied his burden in making a prima
facie case and Applicant has not rebutted it with “competent evidence,” defined as
“proof by preponderant evidence.” Becton, Dickinson and Co., 102 USPQ2d at 1379.
In making our determination, we keep in mind the guidance from the Supreme
Court that “[t]he functionality doctrine … protects competitors against a
disadvantage (unrelated to recognition or reputation) that trademark protection
might otherwise impose, namely their inability reasonably to replicate important
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non-reputation-related product features.” Qualitex Co. v. Jacobson Products Co.,
Inc., 514 U.S. 159, 34 USPQ2d 1161, 1165 (1995). 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. Id.,
34 USPQ2d at 1163-64. As emphasized in Morton-Norwich, which sets out the four
analytical factors, “the effect on competition ‘is really the crux of the matter,’” and a
balance must be struck “between the ‘right to copy’ and the right to protect one’s
method of trade identification.” Morton-Norwich, 213 USPQ at 15-16. Based on the
evidence, competitors would need this cuboidal shape to achieve the same
advantages for distributing and selling milk. To afford registration to Applicant’s
design would inhibit legitimate competition by in effect extending the lifespan of its
monopoly previously afforded by its now expired utility patent. Mars Inc., 105
USPQ2d at 1866.
Based on all of the record evidence and arguments in relation to the Morton-
Norwich factors, we find that the overall design of Applicant’s packaging is
“essential to the use or purpose of the device” as used for milk. TrafFix, 58 USPQ2d
at 1006. Thus, we find that the packaging design functional and not registrable on
that basis.
Decision: The refusal to register the trade dress on the ground that it is
functional is affirmed.