Flapjack Fail: TTAB Says No to Sliced Pancake Mark
In a recent precedential decision, the Trademark Trial and Appeal Board considered whether a product configuration consisting of a pancake divided into eight equal slices could function as a trademark, and concluded that it could not.
The applicants had sought registration of a three-dimensional mark depicting a pancake precut into eight uniform wedges. Registration was sought on the Supplemental Register, which allows registration of marks that are capable of distinguishing goods but are not yet distinctive (so long as they are not functional). The Examining Attorney refused registration on functionality grounds, and the Board upheld that refusal.
Under 15 U.S.C. §1091 (Section 23(c) of the Lanham Act, features that are functional are not eligible for protection. A feature is functional if it is essential to the product’s use or purpose or if it affects cost or quality. This rule exists to prevent trademark law from granting exclusive rights over useful product features that competitors may need to use.
A key factor in the Board’s analysis was the applicants’ own descriptions of the design. Their materials emphasized practical benefits such as easier sharing, serving, and consumption, including the ability to eat the pancake without utensils or to dip individual portions. These statements supported the conclusion that the design serves a utilitarian purpose rather than identifying source.
The record also showed that similar slicing configurations are common across food products like pizzas, pies, and cakes, where dividing items into equal portions is a standard method of serving. Granting rights in such a configuration would disadvantage competitors by limiting their ability to use an efficient and familiar approach.
Although the applicants argued that other presentation options were available, the Board found that those alternatives did not offer the same functional advantages. In any event, the existence of alternatives does not overcome a finding of functionality where the feature itself provides a practical benefit.
The applicants also attempted to rely on the pancake’s surface texture as part of the mark, but it was determined that this texture is simply a natural result of the cooking process and therefore functional as well.
Ultimately, it was held that the proposed design is functional and not eligible for registration, even on the Supplemental Register. The decision underscores that trademark protection does not extend to product features driven by utility, and businesses should carefully assess whether a design serves a functional role before seeking trademark protection.
The attorneys at Renner Otto strive to be authorities in all matters concerning the ever-evolving landscape of Intellectual Property; however, the information provided on our website is not intended to be legal advice, nor does it create an attorney-client relationship.
Contact us to schedule a consultation.