Although the iPhone 6 was the headliner, Apple’s release of iOS 8 was a respectable supporting act. Unfortunately though, the negative headlines keep coming in as poor performance reviews have kept more than half of Apple users from downloading the new operating system (your dear author included among them).

Apple received some additional bad news on October 2 when the U.S. Patent and Trademark Office issued Office Actions initially refusing registration of Apple’s three claimed trademarks set forth below (click the image for a link to the application):

We’ve previously discussed these applications here and here. Part of the discussion centered around whether the claimed mark actually functioned as a trademark. Specifically, the third application set forth the following description of the mark:

The mark consists of the configuration of a rectangular handheld mobile digital electronic device with rounded edges and an arrangement of twenty-two icons consisting of squares with rounded edges arranged in six rows on the screen of the device. The matter shown in broken lines is not part of the mark.

The Trademark Office has initially refused all three applications on the grounds that the claimed marks (1) are non-distinctive product designs, (2) require changes to the drawings and descriptions of the marks, and (3) the drawing has included functional elements. The Office Action did not identify the arrangement of square icons in rows as a functional element and also left open the possibility for establishing acquired distinctiveness for the marks. Consequently, it is certainly possible that Apple could overcome the refusals.

Under the Supreme Court’s TrafFix decision, a feature is functional if it is essential to the use or purpose of the product, if it affects the cost or quality of the product, or if it would put competitors at a significant non-reputation-related disadvantage. Generally, the ability to use square icons arranged in rows could affect the quality of the operating system. This arrangement efficiently uses the limited space available on a phone’s operating system. It also is a very common arrangement for icons on digital devices (computers, phones, and more). It is hard for me not to conclude that granting Apple the exclusive right to use the mark, as identified in the application, would not not put competitors at a disadvantage. As a result, I’m still not so sure the mark isn’t entirely functional.

Of course, based on the numerous issues that users are experiencing with iOS 8, would it be so bad for Apple if some part of iOS 8, even just the trademark, was determined to be “functional?”