In re Keep A Breast Foundation

85316199 · Decided 2017-08-17

What happened

Three of four refusal grounds affirmed for 3D breast/torso cast trade dress for breast cancer awareness services. (1) All specimens failed — original showed mark but no services; first substitute showed different casts with word mark identifiers rather than applied-for configuration; second substitute showed casts on table with no service association. (2) Mark fails to function as service mark — breast casts perceived as part of the educational and associational services rather than as source designator, especially where third parties offer similar breast casting services. (3) Acquired distinctiveness insufficient even arguendo — lack of uniformity in individually-molded casts, generalized financial data not tied to specific mark, third-party use undercuts substantial exclusivity, length of use alone insufficient for product form. Fourth ground (nondistinctive trade dress/ornamentation) not reached.