In re Becton Dickinson & Co., No. 11-1111 (Fed. Cir. 2012)
Annotate this CaseBD applied to register with the U.S. Patent and Trademark Office a mark for "closures for medical collection tubes," asserting acquired distinctiveness based on five years of substantially exclusive, continuous use in commerce. The examining attorney refused registration under 15 U.S.C. 1052(e)(5) finding that the cap design was functional and that even if non-functional, the cap design was a non-distinctive configuration of the goods under 15 U.S.C. 1051-1052 and 1127. She found BD's declaration insufficient to show acquired distinctiveness under 15 U.S.C. 1052(f). The Trademark Trial and Appeal Board and the Federal Circuit affirmed on the basis that the cap is functional.
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