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

are: (1) whether the design asserted as a mark was the subject of a utilitypatent; (2) whether the originator of the design touts its utilitarianadvantages through advertising; (3) whether there are other commercialalternatives available: and(4) whether the design results from acomparatively simple or cheap method of manufacturing the article. J$,, at15-16.In applying these factors to the claimed marks in this case, I must find,with several exceptions, that the claimed marks are not de..1. U t vfunctional.The Courts have found that configurations thatare the subject of a utility patent are functional, whether or not suchpatent has expired.a, us Bpplication of Honeywell , 497 F.2d 1345(C.C.P.A. 1974): Best Jlock Com. v, Schhne Lock Co. , 413 F.2d 1195(C.C.P.A. 1969).Patentg.Complainants themselves hold two utility patents which cover certaindesign features of two of the products at issue.These are the clampingmechanism for cordless finishing sanders (FF 2371, and the safety cover fortheir circular saws (FF 238).To the extent these features are claimed asprotectable design features in CXA 3, App. B, at A.3.gand 1.3.j, they arefunctional by virtue of these utility patents and are not protectable.There is also a utility patent, dated Hay 1976, on a battery cartridgehaving the individual cells positioned in parallel rows therein, in a2x2~2~2 configuration, and having the same basic rectangular longitudinalshape and oval cross section as the Makita cartridges. (FF 239). Thepatent device does not have the same type of contacts, nor the ribs forproper insertion that are on the Makita cartridges and does not, therefore,fully depict the Makita design.It alone does not render the design203