The functionality doctrine remains strong. In a recent decision, the Trademark Trial and Appeal Board relied on the doctrine of functionality in finding that the product configuration mark at issue was unprotectable under Section 2(e)(5) of the Lanham Act.
Updated May 29, 2020
On May 27, 2020, the United States Patent and Trademark Office announced updated measures granting relief for trademark owners impacted by the COVID-19 pandemic.
The deadline extensions that the USPTO announced through previous notices will expire on May 31.
The USPTO will now provide relief on a case-by-case basis for mark owners who have missed certain deadlines as a result of the pandemic. In particular, if mark owners have failed to timely submit responses or fees in connection with Office Actions, or failed to timely meet statutory deadlines, they may file a petition to revive an application or a petition to the director, as appropriate. The petition should explain that the delay in filing or payment was due to the pandemic. For now, if such a statement is included, the USPTO will waive the fees associated with filing the petition.
If the pandemic has interfered with filings with the Trademark Trial and Appeal Board, mark owners may make a request or motion, as appropriate, for an extension or reopening of time.
We’ll continue to post updates here. If you have missed a deadline and wish to better understand the steps you can take to continue protecting your trademark rights, please feel free to contact the Faegre Drinker trademark team.