Certain Electric Power Tools, Battery Cartridges, and ... - USITC

u/issue are inherently distinctive.C.In Morton - Norwich Products. Inc, , 671 F.2d 1332, 213 U.S.P.Q.9 (C.C.P.A.1982) the Court of Customs and Patent Appeals defined the meaning of"functionality.As noted therein213 U.S.P.Q. at 12.the label "functional" has dualsignificance. It has been used on theone hand, in lay fashion to indicate "thenormal or characteristic action ofanything," and, on the other hand, it hasbeen used to denote a legal conclusion.Thus, the material question becomes whether the subject matter at issue isfunctional factually or legally.If the designation 1*functiona118 is todenote legal consequence then we are concerned with "b iya"functionality, If it is used in the lay sense, we are concerned vithfacto" functionality.If something is & facto functional, it still may belegally recognized as an indication of source. If it isfunctional, such a design may not be protected as a trademark. Id. at 13.The Wton-Norwi&decision speaks of functionality in the legal sense asbeing "determined in light of 'utility,' which is determined in light of'superiority of design,' and rests upon the foundation 'essential toeffective competition.'" &, at 15. In determining whether a design isutilitarian in this sense, the court considered several criteria.TheyIn comparing the various models for distinctiveness, functionality andinfringement, I relied primarily upon my own personal observation, ratherthan the testimony of the experts for each side. I found the testimony ofthe experts to to be somewhat biased in favor of their client in suchcomparisons. Thus I find that their testimony in these regards did not"assist [me] to understand the evidence or to determine a fact in issue."F.R.C.P. 702.202