As the advertisement shows, Pepsi is playing a large role in the event, as the “Official Soft Drink” of the MLB All-Star Game.
As attractive as the ad is, sadly, I suspect that only trademark types and dedicated DuetsBlog readers will automatically have their attention drawn to the “grip-able” portion of Pepsi’s new bottle design, launched last year — recall this little gem?
By way of dramatic update, Pepsi’s new bottle design was registered — yesterday — as a non-traditional trademark, see here.
The description of the mark reads:
“The mark consists of a configuration of product packaging in the nature of a three-dimensional bottle having a flat label panel on the top half, with a decorative band below the label panel containing a diagonal pattern, the bottle having concave sides where the diagonal pattern appears. The matter shown in the mark with dotted lines, the closure and footed base, is not part of the mark and serves only to show the position or placement of the mark.”
The “decorative band” reference is hardly the whole truth is it?
To that point, it is certainly interesting that functionality was never explored by the Examining Attorney at the USPTO (or addressed by Pepsi), instead the focus of the examination was on whether the bottle design is merely a non-distinctive package configuration, and Pepsi was able to convince the Examining Attorney that the bottle shape is inherently distinctive, with this response.
Apparently the Examining Attorney never considered any of the media coverage that we addressed last year? What, no dedicated readers among the Examining Corps?
Given how functionality is a challenge that can be raised “at any time” under the Lanham federal trademark statute, what might that mean for Pepsi when it comes time to enforce rights in this non-traditional trademark registration, now, or ever?
To the extent Pepsi’s early missteps in focusing on the functional aspects of the bottle design changes would support a viable challenge to invalidate the registration and any non-traditional trademark protection, reading the recent writing of the legendary Tony Fletcher (and one of my former partners) might provide an important pause for Pepsi:
“[I]f trademark registration of functional matter is not refused and a registration issues, the functional matter is a ticking time bomb . . . .”
Hopefully for Pepsi, the only explosions that will be heard during this MLB All Star extravaganza will be fireworks, and not the kind of functionality time bomb Tony has warned about.