Appeal No. 81-540.

671 F.2d 1332 (1982)


United States Court of Customs and Patent Appeals.

February 18, 1982.

Attorney(s) appearing for the Case

Richard J. Egan, Greenville, S. C., for Morton-Norwich Products, Inc.

Joseph F. Nakamura, Sol., Joseph Diamante, Trademark Examiner, and Fred J. McKelvey, Associate Sol., Washington, D. C., for Patent and Trademark Office.

Before MARKEY, Chief Judge, RICH, BALDWIN, MILLER and NIES, Judges.

RICH, Judge.

This appeal is from the ex parte decision of the United States Patent and Trademark Office (PTO) Trademark Trial and Appeal Board (board), 209 USPQ 437 (TTAB 1980), in application serial No. 123,548, filed April 21, 1977, sustaining the examiner's refusal to register appellant's container configuration on the principal register. We reverse the holding on "functionality" and remand for a determination of distinctiveness.


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