The Billy Goat Chip Company contends it owns exclusive rights in a protectable and distinctive trademark for the appearance of the above chip bag, minus any words or images — just the shape and configuration of the bag. (Reminds me of my grade school brown paper lunch bag)
The drawing below on the left is the original drawing depicting the claimed mark, and the one on the right below is the new drawing submitted with an amendment and office action response just last week and described this way: “The mark consists of a three-dimensional configuration of product packaging for the goods having a window on the front panel and front and back walls joining at the top to resemble a steeple, the matter shown in broken lines is not part of the mark and serves only to show the position or placement of the mark.”
While the chips look amazing, I’m not sure there is a trademark in the bag — neither literally nor metaphorically. This one appears to have functionality written all over it. In fact, that’s what the Examining Attorney thought when the USPTO issued an initial refusal back in November of 2014:
“Several features of applicant’s bag appear to be functional including front panel window the handle portion, the triangular section at the bottom and the overall shape of the bag. The window is functional because it allows the consumer to view the chips inside the bag. The triangular section at the bottom and the crease leading up from it are functional because they allow the bag to fold for convenient storage and shipping. Finally, the overall shape of the bag is functional because it is a commonly used size in the packaging industry that maximizes interior space and has a flat bottom so that the bag can stand upright. See the attached website evidence from several websites showing that many paper bags contain the same features as the bag in applicant’s mark, such as a front window, flat bottom and perforated sides so that the bags can be folded. Furthermore, the attached excerpt from durobag.com discusses the functionality of window panels on food bags, namely, that it allows customers to see the food inside, thus “…enticing them to pick it up off the shelf.” Additionally, the attached excerpt from search.mrtakeoutbags.com explains the functionality of flat-bottom bags, in that it allows for the bag to stand alone for easy fill-up.“
In response to the functionality refusal, it appears that the Billy Goat has stepped back from its original claim in the entire bag, to now focus only on the solid lines that form the “steeple,” but the so-called “steeple” portion appears to double as a “handle” (as referenced above) and the video on the Billy Goat’s website seems to visually confirm many of the Examiner’s functionality concerns in addition to confirming that the chosen bag shape allows the bag to be easily sealed.
The audio portion of the Billy Goat video isn’t helpful in refuting the Examiner’s functionality concerns either: “Our bag is wonderful in many ways. Not only is it interesting, but it also has function. The material and design helps protect the chips inside without the addition of nitrogen to the bag. That’s why our bags are actually full. This means, however, that every bag must be opened and filled by hand. We do this nearly 6,000 times daily. Each unit is given a straightening up and then it is sealed immediately to maintain freshness and packed for delivery within 48 hours.” (emphasis added)
From where I’m sitting, the functionality refusal looks difficult to overcome, and I’m thinking the Billy Goat won’t be able to beat its way out of it (even if the brown paper bag were doused with some water).
Here is a link to the Billy Goat’s response, what do you think?
Are you convinced that the top of the bag consists of a “distinctive closure design [and] is a non-functional, ornamental feature of the bag that is entitled to trademark protection.” Or that “the ornamental feature of Applicant’s closure design, which is the precise element claimed in the mark as amended, is not essential to the purpose of the bag and does not beneficially affect the cost or quality of the bag”?
Not me. Indeed, I’m left wondering how a flat-bottom brown paper bag could be sealed any more easily at the opening in the top than by the form and method chosen by the Billy Goat design?
Also, does anyone else wonder what the Billy Goat would say about the Xochitl Chips bag to the right above? — we happen to have one sitting in our kitchen cupboard at the moment, in fact.
So, is the Billy Goat going to be left holding the bag on this one? In other words, is the Billy Goat’s trademark claim an empty bag? And, after emptying, could the bag serve an additional function of assisting the Billy Goat in obtaining a normalized breathing pattern, or might it be used as a receptacle for particulate matter of a projectile nature — perhaps from the stress or anxiety in hearing the bad news about functionality?
If so, the Billy Goat might want to rethink the cellophane window feature.