Carling Technologies, Inc.

Trademark Trial and Appeal Board

Jan 8, 2021

88279448 (T.T.A.B. Jan. 8, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 8, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Carling Technologies, Inc.
_____

Serial No. 88279409
Serial No. 88279448
(Consolidated)
_____

Todd M. Oberdick and David W. Aldrich of Forge IP, PLLC,
for Carling Technologies, Inc.
Christopher M. Nunley, Trademark Examining Attorney, Law Office 104,
Zachary Cromer, Managing Attorney.
_____

Before Zervas, Taylor, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Carling Technologies, Inc. (“Applicant”) seeks registration on the Principal
Register of the claimed product configuration marks shown below, both for “actuators
for rocker switches,”1 in International Class 9:

1 “The Board may take judicial notice of dictionary definitions, including online dictionaries,
definitions in technical dictionaries and translation dictionaries that exist in printed format.”
In re Omniome, Inc., 2020 USPQ2d 3222, *2 n.17 (TTAB 2019). We take judicial notice that
a “rocker switch” is “an electrical switch that you press on one side to turn a device on and
the other to turn it off, rather than a switch that you move from one position to the other.”
Serial Nos. 88279409 and 88279448 (Consolidated)
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2
3

CAMBRIDGE DICTIONARY (dictionary.cambridge.org/us/dictionary/english/rocker-switch, last
accessed on January 8, 2021). As explained below, an “actuator” turns the switch on or off.
2 Application Serial No. 88279409 was filed on January 28, 2019 under Section 1(a) of the
Trademark Act and with a claim of acquired distinctiveness under Section (2)(f) of the
Trademark Act, 15 U.S.C. §§ 1051(a) and 1052(f), based on Applicant’s claimed first use and
first use in commerce since January 2002. Applicant describes this claimed mark as “a three-
dimensional design of an actuator for rocker switches. The three-dimensional shape of the
actuator features a convex front surface having raised left and right edges. The solid lines
show the positioning of the mark on the goods and those features claimed by the owner as its
mark. The matter shown by the dotted lines is not part of the mark, and no claim is made to
it apart from the mark as shown.”
3 Application Serial No. 88279448 was also filed on January 28, 2019 under Sections 1(a) and
(2)(f) of the Trademark Act, based on Applicant’s claimed first use and first use in commerce
since January 2002. Applicant describes this claimed mark as “a three-dimensional design of
Serial Nos. 88279409 and 88279448 (Consolidated)
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The Trademark Examining Attorney refused registration of Applicant’s claimed
marks under Sections 1, 2, and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1052,
and 1127, on the grounds that the claimed marks are non-distinctive product designs
that do not function as marks and that Applicant’s showings of acquired
distinctiveness under Section 2(f) of the Trademark Act are insufficient.
When the refusals were made final, Applicant requested reconsideration in both
cases and then appealed. After the Examining Attorney denied the reconsideration
requests, the appeals were resumed and are fully briefed.4 Because the appeals have
common issues of law and fact and virtually identical records, we consolidate them
and will decide them in a single opinion. In re S. Malhotra & Co. AG, 128 USPQ2d
1100, 1102 (TTAB 2018). We affirm the refusals to register.
I. Records on Appeal5
The records on appeal in the two cases are virtually identical. They include
Applicant’s original and substitute specimens of use, which we reproduce below:

an actuator for rocker switches. The three-dimensional shape of the actuator features a
convex front surface having raised left and right edges and a window near the top. The solid
lines show the positioning of the mark on the goods and those features claimed by the owner
as its mark. The matter shown by the dotted lines is not part of the mark, and no claim is
made to it apart from the mark as shown.”
4 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page number(s) of the docket entry where the cited materials
appear. The briefs in the two cases are substantially identical, and unless otherwise
indicated, citations are to the briefs in Serial No. 88279409.
5 Citations in this opinion to the application records, including the requests for
reconsideration and their denials, are to pages in the Trademark Status & Document
Retrieval (“TSDR”) database of the United States Patent and Trademark Office (“USPTO”).
Where necessary, we will indicate the different places in each file history where referenced
evidence appears. The Examining Attorney issued, and subsequently withdrew, functionality
Serial Nos. 88279409 and 88279448 (Consolidated)
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(Application Serial No. 88279409 (original specimen))

(Application Serial No. 88279448 (substitute specimen))
and the following materials:

refusals in both applications, November 4, 2019 Final Office Actions at TSDR 1, and we do
not summarize the record evidence directed specifically to those refusals.
Serial Nos. 88279409 and 88279448 (Consolidated)
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 Pages from Applicant’s website at carlingtech.com describing and displaying
Applicant’s switch actuator types,6 made of record by the Examining Attorney
in both applications;7
 The declarations of three employees of Applicant, Gerald Peplau, its Product
Manager, Harold Wiegard, its Vice President, Global Quality, and Rogelio
Rangel Loera, its Production Superintendent, and the declarations of two
employees of resellers of Applicant’s products, James Parasopoulos and Dewey
M. Thrash V, made of record by Applicant in both applications;8
 U.S. Design Patent No. D458,231 (the “’231 Patent”), which claims “[t]he
ornamental design for an electrical switch actuator,” made of record by
Applicant in both applications;9
 Catalogs showing Applicant’s products, made of record by Applicant in both
applications;10

6 Applicant’s website defines a “switch actuator” as “the mechanical component on a switch
used to manually turn a circuit on and off,” and states that “[s]witch actuators can also serve
to visually indicate whether a circuit is ON or OFF.” March 22, 2019 Office Action at TSDR
2 (Serial No. 88279409).
7 Id. at TSDR 2-3 (Serial Nos. 88279409 and 88279448).
8 September 21, 2019 Responses to Office Action at TSDR 20-21 (Serial No. 88279409) and
TSDR 21-22 (Serial No. 88279448); April 21, 2020 Requests for Reconsideration at TSDR 12-
25 (Serial Nos. 88279409 and 88279448). We will cite the declarations by paragraph number
(e.g., “Peplau Decl. ¶ 12”). Applicant also submitted the declaration of Walt Sadowski, its
Manager, New Product Development, in each application, but Mr. Sadowski’s testimony was
directed to the functionality refusals that were withdrawn by the Examining Attorney.
9 September 21, 2019 Responses to Office Action at TSDR 41-43 (Serial No. 88279409) and
TSDR 42-44 (Serial No. 88279448).
10 September 21, 2019 Responses to Office Action at TSDR 44-385 (Serial No. 88279409) and
TSDR 45-386 (Serial No. 88279448).
Serial Nos. 88279409 and 88279448 (Consolidated)
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 Advertisements and promotional materials for Applicant’s products, made of
record by Applicant in both applications;11
 Photographs of products that Applicant claims were copied from Applicant’s
products, made of record by Applicant in each application;12 and
 Webpages showing products that the Examining Attorney claims are similar
in appearance to each of Applicant’s products, made of record by the Examining
Attorney in each application.13
II. Analysis of Refusal
A. Applicable Law
In Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 54 USPQ2d 1065, 1069
(2000), the Supreme Court held that “[c]onsumers are aware of the reality that,
almost invariably, even the most unusual of product designs . . . is intended not to
identify the source, but to render the product itself more useful or more appealing.”
“As a result, product designs can never be inherently distinctive and will always
require evidence of acquired distinctiveness or secondary meaning to be registrable
as marks.’” In re OEP Enters., Inc., 2019 USPQ2d 309323, *16 (TTAB 2019) (quoting
Kohler Co. v. Honda Giken Kogyo K.K., 125 USPQ2d 1468, 1503-04 (TTAB 2017)

11 September 21, 2019 Responses to Office Action at TSDR 439-75 (Serial No. 88279409) and
TSDR 440-76 (Serial No. 88279448).
12 September 21, 2019 Responses to Office Action at TSDR 426-38.
13 November 4, 2019 Final Office Actions at TSDR 2; June 11, 2020 Denials of Request for
Reconsideration at TSDR 2-10.
Serial Nos. 88279409 and 88279448 (Consolidated)
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(citations and internal quotation marks omitted)).14 “Acquired distinctiveness means
that consumers have come to associate the mark with a single (even if anonymous)
source.” Kohler, 125 USPQ2d at 1504 (citation omitted). An applicant “has the burden
of demonstrating that its mark has acquired distinctiveness.” In re Change Wind
Corp., 123 USPQ2d 1453, 1467 (TTAB 2017).
In assessing whether a descriptive term has acquired distinctiveness, we must
first determine the term’s degree of descriptiveness, Royal Crown Cola Co. v. Coca-
Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1048 (Fed. Cir. 2018), because “[t]he
greater the degree of descriptiveness the term has, the heavier the burden to prove it
has attained secondary meaning.” Id. (quoting In re Boston Beer Co., 198 F.3d 1370,
53 USPQ2d 1056, 1058 (Fed. Cir. 1999) (internal quotation omitted)). “Analogizing to
the heavier burden on an applicant for a highly descriptive term, an applicant for a
product design mark bears a heavier burden because consumers are not predisposed
to viewing the product features as source identifiers.” In re MK Diamond Prods., Inc.,
2020 USPQ2d 10882, *19 (TTAB 2020). In that regard, the Examining Attorney made
of record photographs of multiple rocker switches with actuators that are similar in
appearance to Applicant’s. We reproduce several below:

14 The Examining Attorney claims in his brief in Serial No. 88279409 that “[t]here are two
issues on appeal, whether Applicant’s mark is a non-distinctive product design and whether
the Applicant’s claim of acquired distinctiveness is sufficient to show that the mark is
perceived by consumers as a source identifier for the relevant goods.” 8 TTABVUE 3. Whether
Applicant’s mark is a non-distinctive product design is not an issue because we agree with
Applicant that it “has never argued (during prosecution or on appeal) that the applied-for
Mark (which is product configuration) is inherently distinctive.” 9 TTABVUE 3. Applicant
properly confines its evidence and argument on appeal to its claim that each of its product
configurations “is distinctive because it has acquired secondary meaning.” Id.
Serial Nos. 88279409 and 88279448 (Consolidated)
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15
16
17

15 June 11, 2020 Denials of Requests for Reconsideration at TSDR 2.
16 Id. at TSDR 4.
17 Id. at TSDR 9.
Serial Nos. 88279409 and 88279448 (Consolidated)
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18
19
Applicant does not deny that these actuators resemble its own. Instead, Applicant
argues in each case that it enjoyed exclusivity of use of its claimed marks under the
’231 Patent, which was in effect between June 2002 and June 2016, 9 TTABVUE 4,
that following expiration of the ’231 Patent, Applicant “filed the subject application[s]
for a federal registration to be able to enforce its rights in its trade dress in order to
maintain this exclusivity,” id., and that the “current appearance of these inferior
copycats, which are made cheaply overseas and have been quickly popping up at an

18 Id. at TSDR 10,
19 November 4, 2019 Final Office Action at TSDR 2 (Serial No. 88279409).
Serial Nos. 88279409 and 88279448 (Consolidated)
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alarming rate, does not negate Applicant’s evidence of nearly two decades of
continuous, exclusive use.” Id. at 4-5. Because Applicant admits that third parties are
“quickly popping up at an alarming rate” to sell rocker switches with actuators that
Applicant admits resemble its own, and there is not an insignificant number of
examples in the record, registrations of the claimed marks “may not issue except upon
a substantial showing of acquired distinctiveness.” Kohler, 125 USPQ2d at 1505
(quoting In re Udor U.S.A., Inc., 89 USPQ2d 1978, 1986 (TTAB 2009)).
“Our analysis of the evidence of acquired distinctiveness is based on the totality
of the evidence.” MK Diamond Prods., 2020 USPQ2d 10882 at *20. The Federal
Circuit has held that
the considerations to be assessed in determining whether
a mark has acquired secondary meaning can be described
by the following six factors: (1) association of the trade
dress with a particular source by actual purchasers
(typically measured by customer surveys); (2) length,
degree, and exclusivity of use; (3) amount and manner of
advertising; (4) amount of sales and number of customers;
(5) intentional copying; and (6) unsolicited media coverage
of the product embodying the mark.
Converse, Inc. v. ITC, 909 F.3d 1110, 128 USPQ2d 1538, 1546 (Fed. Cir. 2018). “While
Converse concerned an appeal from a decision issued by the International Trade
Commission, the Federal Circuit’s clarification of the factors in determining acquired
distinctiveness is equally applicable to any Board proceeding that necessitates a
showing of secondary meaning,” including both inter partes cases and ex parte
appeals. In re SnoWizard, Inc., 129 USPQ2d 1001, 1005 n.8 (TTAB 2018). We discuss
below those Converse factors that are relevant to these cases.
Serial Nos. 88279409 and 88279448 (Consolidated)
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B. Analysis of Evidence and Arguments Relating to the Relevant
Converse Factors
Applicant argues in its appeal brief that it has submitted “substantial evidence
regarding its extensive use, commercial success and advertising, consumer
recognition, and, perhaps most significantly, evidence that recent counterfeit
products have been marketed as ‘Carling style,’ and that customers have returned
defective counterfeit products to [Applicant], all showing that consumers associate
this product configuration with [Applicant],” 4 TTABVUE 5, and in its reply brief,
Applicant argues that it “has submitted various forms of evidence showing that
nearly all of [the Converse] factors support a finding that the applied-for Mark has
acquired distinctiveness.” 9 TTABVUE 4. The Examining Attorney responds that
Applicant’s “evidence remains insufficient to establish acquired distinctiveness,” 8
TTABVUE 4, because “[t]he ultimate test in determining acquisition of
distinctiveness under Section 2(f) is not applicant’s efforts, but applicant’s success in
educating the public to associate the claimed mark with a single source.” Id. at 4-5.
1. Association of the trade dress with a particular source by
actual purchasers20
Applicant offers the declarations of James Parasopoulos and Dewey M. Thrash V,
employees of two “customer dealers who buy and sell [Applicant’s] Contura switches

20 This factor is “typically measured by customer surveys.” Converse, 128 USPQ2d at 1546.
Applicant does not provide a survey, but offers the retailer declarations discussed below to
establish association of Applicant’s claimed marks with Applicant by actual purchasers. We
will consider the declarations under the first Converse factor for whatever probative value
they may have as direct evidence of acquired distinctiveness.
Serial Nos. 88279409 and 88279448 (Consolidated)
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and switches from [Applicant’s] competitors.” 4 TTABVUE 6.21 Mr. Parasopoulos is
employed by a company in Cupertino, California that has been buying and selling
actuators and switches from Applicant and other manufacturers for 11 years,
Parasopoulos Decl. ¶ 5, while Mr. Thrash is employed by a company in Elkhart,
Indiana that has been buying actuators and switches from Applicant and buying and
selling switches from other manufacturers for 13 years. Thrash Decl. ¶ 5.
For the most part, their testimony is substantively identical. Each declarant refers
to the same attached Exhibits A and B, which consist of the drawings of the claimed
marks in the two applications, and testifies that “[w]hen I reviewed the images
attached at Declaration Exhibits A and B, I immediately recognized these as Carling’s
‘Contura V’ switch actuators based on their distinctive style. I associate the
ornamental design shown in these pictures with Carling.” Parasopoulos Decl. ¶ 6;
Thrash Decl. ¶ 6.
Each declarant also lists “[s]ome of the features of the product shown” in each
exhibit that “cause me to immediately recognize it” as one of Applicant’s products.
Parasopoulos Decl. ¶¶ 7-8; Thrash Decl. ¶¶ 7-8. The list of features is the same for
each product. For the product configuration shown in Exhibit A (Serial No.
88279409), and reproduced below:

21 Applicant claims that the declarations of its own employees should also be considered under
this Converse factor, 4 TTABVUE 6, but we will consider them under the second factor
because they do not involve the testimony of “actual purchasers.” Converse, 128 USPQ2d at
1546.
Serial Nos. 88279409 and 88279448 (Consolidated)
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the listed features are “[i]ts unique, three dimensional shape,” “[t]he single, smooth
convex surface that extends along the front of the actuator from the top to the
bottom,” “[t]he raised edge along the left and right sides of the actuator, but not along
its top or bottom, that give the center a recessed look all the way through the top and
bottom of the actuator,” and “[t]he gradual, inward curve of the raised edges towards
the top and bottom of the actuator.” Parasopoulos Decl. ¶ 7; Thrash Decl. ¶ 7.
For the product configuration shown in Exhibit B (Serial No. 88279448), and
reproduced below:

Serial Nos. 88279409 and 88279448 (Consolidated)
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the listed features are the same identified in connection with Exhibit A, plus “[t]he
shape and placement of the single, circular window.” Parasopoulos Decl. ¶ 8; Thrash
Decl. ¶ 8.
Each declarant also opines that “[t]his combination of design elements of the
‘Contura V’ switch actuators are [sic] unique and makes them immediately
recognizable as Carling’s ‘Contura V’ products,” Parasopoulos Decl. ¶ 9; Thrash Decl.
¶ 9, and testifies to the popularity of Applicant’s products. Mr. Parasopoulos states
that “[o]f all the actuators/switches we buy/sell/use, the ‘Contura V’ is one of the most
popular/common. In fact, on many occasions, our customers specifically seek/request
to use the ‘Contura V’ design.” Parasopoulos Decl. ¶ 10. Mr. Thrash states that “[o]f
all the switches we buy and use, the ‘Contura V’ is one of the most common. In fact,
on many occasions, we/customers specifically seek/request to use the ‘Contura V’
design.” Thrash Decl. ¶ 10.
According to Applicant, the two declarations
detail how the product design of Carling’s Contura V is
unique and immediately recognizable as a Carling switch,
how their own customers specifically request Carling’s
Contura V switch, and how their customers even
mistakenly believe that recent plagiarized products from
China are Carling’s Contura V switch based on the
distinctive product design of the copied Contura V switch.
Id.
The Examining Attorney responds that these declarations and the others are from
“interested parties [and] do not show that independent consumers will view the mark
as a source identifier.” 8 TTABVUE 5. He argues that the resellers “have a vested
interest in the sale of the Applicant’s goods and their ability to prevent others from
Serial Nos. 88279409 and 88279448 (Consolidated)
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offering similar goods,” id., and “have decades of experience interacting with the
Applicant’s goods and are not considered average consumers.” Id. The Examining
Attorney also argues that “these affidavits and declarations were clearly prepared by
the Applicant and/or on their behalf. Each declaration uses an identical format and
identical wording for statements 6, 7, 8, and 9, which speak directly to the issue of
acquired distinctiveness. Accordingly, these declarations are also entitled to little
weight.” Id. at 5-6.
In reply, Applicant argues that the fact that it prepared the declarations is
irrelevant because “[t]hese are sworn statements, and it has long been recognized
that they are therefore legitimate evidence that must be considered,” 9 TTABVUE 8,
and that the “declarants are themselves consumers of one type, who also interact with
consumers of another type.” Id. at 9.
We find that the two non-party declarations are problematic for two primary
reasons. First, the language of the declarations confirms that the declarations were
prepared by Applicant or its counsel, and we agree with the Examining Attorney that
the form nature of the declarations reduces their evidentiary value.22 The Board has
repeatedly held that “the probative weight of [such] declarations is lessened by the
fact that they are identical in form and are not composed individually.” MK Diamond

22 At the same time, however, we disagree with the Examining Attorney to the extent that he
suggests that the fact that these witnesses and the party witnesses “have a vested interest
in the sale of the Applicant’s goods and their ability to prevent others from offering similar
goods,” 8 TTABVUE 5, necessarily reduces the probative value of their testimony. Given the
nature of the evidence that is relevant under the Converse factors, interested witnesses such
as those here will invariably be the source of most testimony. The issue is whether the
testimony is persuasive even though it is offered by an interested witness.
Serial Nos. 88279409 and 88279448 (Consolidated)
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Prods., 2020 USPQ2d 10882 at *25. “While form statements may be submitted as
evidence of acquired distinctiveness, we generally find them—and find them here—
to be less persuasive than statements expressed in a declarant’s own words.” Id.
(citing Kohler, 125 USPQ2d at 1507). We find it particularly significant that the
identical listed features that each declarant states causes him to associate the
configurations with Applicant were crafted by Applicant or its counsel to track its
argument regarding the elements of its mark in Application Serial No. 88279409, 4
TTABVUE 3, and do not reflect the “spontaneous personal knowledge” of each
declarant as to what makes Applicant’s goods unique in appearance. Kohler, 125
USPQ2d at 1508.
Second, a 2018 catalog states that Applicant has more than 70 distributors
worldwide, suggesting that two resellers are a fraction of Applicant’s United States
distributors, and that Applicant serves a wide variety of markets, including the
marine, military, renewable energy, medical, industrial control, audio/visual,
commercial food, HVAC, floor care, generators, small appliances, security systems,
and test and measurement industries.23 The record is devoid of testimony from
anyone in these industries, as well as testimony from any end users of the goods.
“While we would neither expect nor require scientific sampling in the use of customer
declarations, some degree of geographic and customer diversity is necessary for the
declarations to have significant probative value,” id. (finding that multiple
“Distributor Statements” from distributors of applicant’s engines were insufficient to

23 September 21, 2019 Response to Office Action at TSDR 46.
Serial Nos. 88279409 and 88279448 (Consolidated)
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enable Board to “determine whether the witnesses are representative of [engine]
purchasers” where “the record show[ed] that, in addition to distributors, OEMs,
retailers, and rental yards, among others” were customers of applicant’s engines), and
we find that the two reseller declarations are not a representative sample of the
universe of purchasers of Applicant’s goods, including end users. See also MK
Diamond Prods., 2020 USPQ2d 10882 at *25 (finding that 12 customers declarations,
including 11 identical ones, did not “suggest that this was a representative selection
of possible declarants”); In re Pacer Tech., 338 F.3d 1348, 67 USPQ2d 1629, 1633
(Fed. Cir. 2003) (finding that five affidavits of individuals in the artificial nail
business “at most purport to represent the views of a small segment of the relevant
market.”).
We find that the scripted testimony of two resellers is insufficient in quantity and
quality to have significant probative value under the first Converse factor as direct
evidence of the distinctiveness of Applicant’s configuration marks.
2. Length, Degree, and Exclusivity of Use
Mr. Peplau testified that Applicant “has continuously used the design
configurations of the Contura V in commerce since January 2002,” Peplau Decl. ¶ 9,
that Applicant obtained the ’231 Patent “to ensure that its use of these Contura V
design configurations remains exclusive,” Peplau Decl. ¶ 10,24 and that Applicant
“has actively monitored the market for any copiers of these design configurations.”
Peplau Decl. ¶ 10. He is silent as to whether any actuators with similar appearances

24 The ’231 Patent issued on June 4, 2002 and expired on June 4, 2016.
Serial Nos. 88279409 and 88279448 (Consolidated)
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were sold during the term of the ’231 Patent, cf. OEP Enters., 2019 USPQ2d 309323
at *26 (discussing applicant’s enforcement efforts under its design patent), or about
any enforcement efforts by Applicant during the four years following expiration of the
patent term, when Applicant acknowledges that multiple similar products began
“quickly popping up at an alarming rate.” 9 TTABVUE 4-5.25
Even assuming, however, that Applicant enjoyed exclusive use of the applied-for
marks during the 14-year term of the ’231 Patent, “long and exclusive use alone does
not necessarily establish that a product feature has acquired distinctiveness.” MK
Diamond Prods., 2020 USPQ2d10882 at *20. In MK Diamond Prods., the Board held
that because the applied-for mark was “highly descriptive or non-distinctive, use for
a period of approximately fourteen years was insufficient to establish acquired
distinctiveness.” Id. As discussed and shown above, we have found that Applicant’s

25 Applicant argues in its reply brief that these products are of very recent vintage,
specifically, as of the June 11, 2020 date of the denial of its request for reconsideration, which
Applicant argues is “a year and a half after Applicant filed the subject trade dress
application.” 9 TTABVUE 4. The webpages made of record by the Examining Attorney in his
June 11, 2020 Denial of Request for Reconsideration state that the various products were
first available at various times prior to June 11, 2020, including on February 17, 2019, id. at
TSDR 2, February 14, 2014, id. at TSDR 3, April 13, 2017, id. at TSDR 4, March 13, 2017,
id. at TSDR 5, September 1, 2018, id. at TSDR 6, March 15, 2019, id. at TSDR 7, January 2,
2020, id. at TSDR 8, January 30, 2014, id. at TSDR 9, and January 24, 2018. Id. at TSDR 10.
Applicant also made of record evidence of the sale of “copycat versions of the Contura V” in
its September 21, 2019 Response to Office Action at TSDR 427, 431, 434, and two of
Applicant’s witnesses confirmed the existence of these self-styled “copycat” products prior to
June 11, 2020. Mr. Wiegard stated in his April 15, 2020 declaration that “I have seen that
these rocker switches have started to be copied and sold by various Chinese manufacturers,”
Wiegard Decl. ¶ 4, while Mr. Loera similarly testified in his April 15, 2020 declaration that
he had “seen fake versions of these rocker switches that customers tried to return to Carling.”
Loera Decl. ¶ 4. The record as a whole, augmented by Applicant’s acknowledgement of the
proliferation of similar products, supports a finding that whatever exclusivity Applicant
enjoyed during the term of the ’231 Patent disappeared at some point long before June 11,
2020.
Serial Nos. 88279409 and 88279448 (Consolidated)
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products bearing the applied-for marks appear in the market with multiple similar
looking actuators, and we find that Applicant’s presumed exclusivity of use of its
product configurations during the 14-year term of the ’231 Patent and perhaps for
some period after the expiration of the ’231 Patent has little probative value under
the second Converse factor as evidence of acquired distinctiveness.
3. The Amount and Manner of Advertising
Applicant argues that it has “submitted numerous advertising materials from its
marketing campaign for its Contura switches” in the form of “various email blasts
and e-newsletter banners,” 4 TTABVUE 12, but Applicant’s briefs and Mr. Peplau’s
declaration are silent as to where, when, and how frequently such “email blasts and
e-newsletter banners” or other advertising has appeared, to whom it has been
exposed, and how much Applicant has expended on it. Even compelling “‘advertising
figures do not always amount to a finding of acquired distinctiveness,’” Kohler, 125
USPQ2d at 1516 (quoting Stuart Spector Designs Ltd. v. Fender Musical Instruments
Corp., 94 USPQ2d 1549, 1572 (TTAB 2009)), but here we have none. In the absence
of any metrics for Applicant’s self-described “marketing campaign for its Contura
switches,” the advertisements themselves have no probative value as proof of
acquired distinctiveness. Cf. In re Hikari Sales USA, Inc., 2019 USPQ2d 111514, *15-
16 (TTAB 2019) (discussing cases in which modest advertising expenditures were
found not to support a showing of acquired distinctiveness). Nevertheless, “[w]e will
examine Applicant’s advertising to see whether it encourages consumers or the trade
Serial Nos. 88279409 and 88279448 (Consolidated)
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to view the applied for design[s] as Applicant’s mark[s].” OEP Enters., 2019 USPQ2d
309323 at *23.26
Applicant argues that a review of its advertisements “reveals that these
advertisements for [its] switches prominently display the actuators themselves,
adjacent to the Carling name.” 4 TTABVUE 12 (emphasis in original). We display
five of the advertisements below:27
28

26 As noted below, there are no advertisements showing products bearing the mark claimed
in Serial No. 88279448.
27 The specific nature of these examples of advertising in the record is unclear.
28 September 21, 2019 Responses to Office Action at TSDR 441 (Serial No. 88279409) and 442
(Serial No. 88279448).
Serial Nos. 88279409 and 88279448 (Consolidated)
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29
30

29 Id. at TSDR 442 (Serial No. 88279409) and 443 (Serial No. 88279448).
30 Id. at TSDR 443 (Serial No. 88279409) and 444 (Serial No. 88279448).
Serial Nos. 88279409 and 88279448 (Consolidated)
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31
32
Applicant’s catalogs also display and describe its Contura V actuators:

31 Id. at TSDR 448 (Serial No. 88279409) and 449 (Serial No. 88279448). Applicant displays
this advertisement in its appeal briefs at 4 TTABVUE 13.
32 Id. at TSDR 447 (Serial No. 88279448).
Serial Nos. 88279409 and 88279448 (Consolidated)
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33
34
Applicant concedes that its advertisements do not urge consumers to look for the
particular features of the actuators for which Applicant seeks registration when it
argues that while “‘look for’ advertising can be especially probative, it is certainly not
necessary.” 4 TTABVUE 12 (citing Thomas & Betts Corp. v. Panduit Corp., 138 F.3d
277, 46 USPQ2d 1026, 1037 (7th Cir. 1998)).
The Examining Attorney responds that Applicant has “provided brochures and
advertisements in support of acquired distinctiveness,” 8 TTABVUE 7, but that
“these are not ‘look for’ advertisements.” Id. According to the Examining Attorney,

33 Id. at TSDR 97 (2018 general catalog). This page appears to show the product configuration
mark claimed in Serial No. 88279448. The same display and description appear in one of
Applicant’s “Transportation Switches & Controls” catalogs, id. at TSDR 304, and on a page
from another unidentified 2018 promotional piece. Id. at TSDR 372.
34 Id. at TSDR 268 (2015 marine catalog).
Serial Nos. 88279409 and 88279448 (Consolidated)
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“[w]hile the Applicant’s advertisements show the goods, they also show other goods
and wording that is also not trademark matter,” and it “would be impossible for
consumers to be able to pull out any specific product from these advertisements and
identify a specific product configuration as a separable source identifier apart from
all other goods, wording, and additional trademarks.” Id.
In reply, Applicant cites the Seventh Circuit’s decision in Thomas & Betts for the
propositions that “advertising which prominently features the mark can also function
to draw consumers’ attention to that mark and to associate it with the mark’s owner,”
9 TTABVUE 5, and that “[t[here is no hard-and-fast rule establishing that the shape
of a product must be specifically pointed out in advertising . . . advertising which
encourages consumers to identify the claimed trade dress with the particular
producer is some evidence of secondary meaning.” Id. (quoting Thomas & Betts, 46
USPQ2d at 1037). Applicant concludes that “[i]n this case, advertisement after
advertisement displaying the trade dress (the applied-for Mark) along with the name
of the producer (Carling) does precisely that.” Id. at 5-6.
In the recent MK Diamond Prods. decision, which involved the registrability of
the design of a circular saw blade, the Board reiterated that “[w]hen advertisements
are submitted as evidence of acquired distinctiveness, they must demonstrate the
promotion and recognition of the specific configuration embodied in the applied-for
mark and not of the goods in general.” MK Diamond Prods., 2020 USPQ2d 10882 at
*21 (quoting Kohler, 125 USPQ2d at 1516 (internal quotation omitted)). The Board
also reiterated that “[t]he sort of advertising that can demonstrate that a product
Serial Nos. 88279409 and 88279448 (Consolidated)
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design feature has acquired distinctiveness is commonly referred to as ‘look for’
advertising, which directs consumers in no uncertain terms to ‘look for’ the particular
feature(s) claimed as a trademark,” id. (citing Kohler, 125 USPQ2d at 1516), and that
“look-for” advertising “does not refer to advertising that simply includes a picture of
the product or touts a feature in a non-source identifying manner.” Id. (quoting Stuart
Spector Designs, 94 USPQ2d at 1572 (finding that advertisements featuring
prominent ‘beauty shots’ of guitar body shape were not examples of ‘look-for’
advertising and were not probative of acquired distinctiveness)).
Here, as in MK Diamond Prods., the Applicant does “not deny that its advertising
is not ‘look-for’ advertising, but argues that there is no requirement that an applicant
use such advertising in order to establish secondary meaning.” Id. In that case, the
Board noted that “[t]here are cases where the lack of ‘look for’ advertising [is] not
fatal in view of industry practice to recognize certain configurations as source
indicators,” id. (quoting Stuart Spector Designs, 94 USPQ2d at 1574), but found that
the case before it was not such a case because the practice in the saw blade industry
was to show pictures of the goods, including close ups showing their features, next to
text touting their merits. Id. The Board found that in that context, “in order for saw
blade consumers to have any realistic chance of recognizing the applied-for mark in
Applicant’s advertising—separate and apart from other marks displayed therein—
Applicant’s advertising would have to ‘direct . . . the potential consumer in no
uncertain terms to look for’ the applied-for mark,’” id. (quoting Stuart Spector
Designs, 94 USPQ2d at 1574), and that the applicant’s advertising failed to do so.
Serial Nos. 88279409 and 88279448 (Consolidated)
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The record here shows that rocker switches similarly have been displayed in
public-facing materials together with text touting their features.35 We display one
example below:
36

35 September 21, 2019 Response to Office Action at TSDR 388-425.
36 Id. at TSDR 419.
Serial Nos. 88279409 and 88279448 (Consolidated)
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Applicant’s catalogs themselves display rocker switches and actuators together with
text discussing “product highlights” and “dimensional specifications.” We display two
examples below:
37

37 Id. at TSDR 95.
Serial Nos. 88279409 and 88279448 (Consolidated)
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38
It is against this backdrop that we must assess the effectiveness of Applicant’s
advertising in conditioning consumers to identify the product configuration mark
claimed in Serial No. 88279409, which Applicant claims “has a distinctive three-
dimensional shape, has a single, smooth convex surface that extends from the top to
the bottom along its front, and has raised edges along the left and right sides (but not

38 Id. at TSDR 111.
Serial Nos. 88279409 and 88279448 (Consolidated)
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along the top or bottom) of this surface that curve inwardly towards the upper and
lower edges.” 4 TTABVUE 3.39
As noted above, for advertisements to show acquired distinctiveness, “they must
demonstrate the promotion and recognition of the specific configuration[s] embodied
in the applied-for mark[s] and not of the goods in general.” MK Diamond Prods., 2020
USPQ2d 10882 at *21 (internal quotation omitted). Applicant’s advertisements
display the Contura V rocker switches together with other products, but do not call
attention to the appearance of the switch actuators, much less to the specific features
of the actuators that Applicant claims as its marks. Given the emphasis in the
industry, and in Applicant’s own materials, on the non-source identifying features of
the goods, “for consumers to have any realistic chance of recognizing the applied-for
mark[s] in Applicant’s advertising, separate and apart from” the multiple other
products, the Carling house mark, and even the other features of the Contura V
rocker switches and actuators themselves, “Applicant’s advertising would have to
‘direct[ ] the potential consumer in no uncertain terms to look for’ the applied-for
mark[s].” Kohler, 125 USPQ2d at 1517 (quoting Stuart Spector Designs, 94 USPQ2d
at 1574). Applicant’s advertising instead “‘simply shows the product[s] like any
advertising would’ . . . but does not refer to [their] general appearance, much less the
specific features of the applied-for mark[s]. This is not the ‘look-for’ advertising that

39 According to Applicant, its claimed product configuration mark in Serial No. 88279448 has
those features plus “a circular window located in the center of the upper portion of the
actuator,” 4 TTABVUE 3, but the window does not appear on any of the actuators shown in
any of the advertisements in the record of that application. Id. at 12 (citing September 21,
2019 Response to Office Action at TSDR 442-50).
Serial Nos. 88279409 and 88279448 (Consolidated)
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is capable of creating acquired distinctiveness in any particular element(s) depicted.”
Kohler, 125 USPQ2d at 1517 (quoting Stuart Spector Designs, 94 USPQ2d at 1574).
Even if Applicant had done extensive advertising, “[o]n this record, the absence of
advertising directing consumers to the specific features of the applied-for mark[s]
undermines Applicant’s claim of acquired distinctiveness based upon its advertising.”
Id. Applicant’s evidence on this Converse factor does not support a showing of
acquired distinctiveness.
4. Amount of Sales and Number of Customers
Mr. Peplau testified that “[b]ecause the actuators themselves are interchangeable,
[Applicant] sells both the complete rocker switch (with actuator), as well as the
actuators themselves,” Peplau Decl. ¶ 11, that “[b]etween February 2007 and August
2019, [Applicant] sold 10,534,376 Contura V rocker switches, and an additional
1,023,812 Contura V actuators,” Peplau Decl. ¶ 13, and that “[i]n total, these Contura
V sales amounted to $36,281,217.” Peplau Decl. ¶ 13. Applicant argues that “[t]his
substantial amount of sales far exceeds the amount necessary to establish commercial
success of the product. Lesser amounts have repeatedly been deemed sufficient to
establish a level of commercial success supporting a finding of acquired
distinctiveness.” 4 TTABVUE 14.
The Examining Attorney responds that “Applicant provided evidence of sales
figures for Applicant’s goods to support the claim that the applied-for mark acquired
distinctiveness,” but “this evidence is not dispositive of Applicant’s claim” because
“Applicant’s extensive sales may demonstrate the commercial success of Applicant’s
goods, but not that relevant consumers view the matter as a mark for these goods.” 8
Serial Nos. 88279409 and 88279448 (Consolidated)
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TTABVUE 8. In reply, Applicant agrees and acknowledges that “this evidence must
be viewed in conjunction with all of the other evidence supporting Applicant’s claim
of acquired distinctiveness,” 9 TTABVUE 6, and that “[w]hen viewed together, this is
precisely the type of cumulative evidence found to support a claim of acquired
distinctiveness.” Id.
There are several problems with Applicant’s sales evidence. First, Applicant’s
sales figures for the period 2007-2019 are muddled because they include unit sales of
the Contura V actuators alone (1,023,812) and unit sales of rocker switches
containing Contura V actuators (10,534,376), but aggregate dollar sales for both
actuators and switches (in excess of $36,000,000, or roughly $3,000,000 per year).
Each sale of a Contura V actuator alone, or of a rocker switch containing a Contura
V actuator, exposes the claimed mark to consumers, but the aggregate dollar sales
figure necessarily includes the value of the rocker switches in addition to the value of
the actuators, and the aggregate $36,000,000 figure over the 12-year period is thus
inflated to some degree. We do not know the dollar value of the actuators alone and
thus cannot determine how much of the aggregate $36,000,000 figure that includes
sales of rocker switches is attributable to the actuators themselves.
Second, “Applicant provides no industry context for Applicant’s unit sales figures,
such as Applicant’s relative market share . . . or its sales position vis-à-vis its
competitors, thus diminishing the probative value of these raw numbers.” MK
Diamond Prods., 2020 USPQ2d 10882 at *23 (citing Target Brands Inc. v. Hughes,
85 USPQ2d 1676, 1681 (TTAB 2007) (holding that it is difficult “to accurately gauge
Serial Nos. 88279409 and 88279448 (Consolidated)
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the level of [sales] success . . . in the absence of additional information such as
applicant’s market share or how [applicant’s] product ranks in terms of sales in the
trade” and finding that applicant’s “sales figures for 14 years, standing alone and
without any context in the trade, are not so impressive as to elevate applicant’s highly
descriptive designation to the status of a distinctive mark”)).40 We have no
information as to whether Applicant’s sales are significant when compared to the
sales of competitive products, and Applicant’s unit sales, which average about 85,000
Contura V actuators and 877,000 rocker switches containing Contura V actuators
annually, do not appear to be so substantial on their face as to be persuasive evidence
of acquired distinctiveness without such context.
Third, even assuming that Applicant’s sales are substantial in the rocker switch
actuator industry, “while sales volume figures may demonstrate the growing
popularity of the products, mere figures demonstrating successful product sales are
not probative of purchaser recognition of a configuration as an indication of source.”
Kohler, 125 USPQ2d 1516 (quoting Stuart Spector Designs, 94 USPQ2d at 1572). As
discussed above, Applicant’s reseller witnesses testified that “[o]f all the
actuators/switches we buy/sell/use, the ‘Contura V’ is one of the most
popular/common. In fact, on many occasions, our customers specifically seek/request
to use the ‘Contura V’ design,” Parasopoulos Decl. ¶ 10, and that “[o]f all the switches

40 As noted above, Applicant argues that its sales figures “far exceed[ ] the amount necessary
to establish commercial success of the product.” 4 TTABVUE 14. Given the fact-intensive
nature of the acquired distinctiveness inquiry, there is no absolute figure for sales or
advertising above which acquired distinctiveness must be found. The sales figures in the
cases cited by Applicant, as well as those here, must be considered in the context of the facts
in each case. As noted above, the problem here is that we do not have any such context.
Serial Nos. 88279409 and 88279448 (Consolidated)
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we buy and use, the ‘Contura V’ is one of the most common. In fact, on many occasions,
we/customers specifically seek/request to use the ‘Contura V’ design.” Thrash Decl.
¶ 10. The mere “fact that there was an apparently large consumer demand for
[Applicant’s actuators and switches] does not permit a finding the public necessarily
associated the [actuator] design with” Applicant. Braun Inc. v. Dynamics Corp. of
Am., 975 F.2d 815, 24 USPQ2d 1121, 1131 (Fed. Cir. 1992). Applicant’s sales instead
may simply “reflect the growing popularity of its products, rather than recognition of
its applied-for mark[s].” MK Diamond Prods., 2020 USPQ2d at *23.
We find that Applicant’s unit sales and aggregate dollar sales figures have little
probative value regarding the distinctiveness of its claimed marks under this
Converse factor.
5. Intentional Copying
Applicant argues that “[a]s further evidence that the applied-for Mark is well-
known in the industry and is known to be sourced by [Applicant], there are currently
numerous copycats in the marketplace, now that [Applicant’s] design patent covering
the configuration of the Contura V has expired.” 4 TTABVUE 15. Applicant claims
that the “fact that multiple manufacturers are now replicating the Contura V design
is compelling evidence that the applied-for design has acquired distinctiveness,” id.,
and that this “evidence is even further buttressed by the fact that some of these
copycats specifically refer to themselves as ‘Carling style’ switches.” Id. The example
cited by Applicant is set forth below:
Serial Nos. 88279409 and 88279448 (Consolidated)
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41
Messrs. Wiegard and Loera also testified regarding instances in which consumers
had returned defective switches made by others to Applicant. Mr. Wiegard testified
that “[o]n multiple occasions, customers have attempted to return what they thought
were Carling’s switches, but were actually copycat rocker switches. These forged
products look like Carling’s switches, but upon examination, are inferior products.”
Wiegard Decl. ¶ 5. In his view, “the fact that these customers are returning these
copycat products to Carling clearly shows that these customers associate the design
of these actuators with Carling and believe that these forged products come from
Carling.” Wiegard Decl. ¶ 7. Mr. Loera testified regarding “fake versions of these
rocker switches that customers tried to return to Carling,” Loera Decl. ¶ 4, and that
“the actuators of these fake rocker switches have the same outer design as Carling’s
switches.” Loera Decl. ¶ 6. He opined that “[b]ased on the outer design, at first glance,
it is easy to mistake [the switches] for Carling’s products.” Loera Decl. ¶ 6. Applicant’s

41 September 21, 2019 Response to Office Action at TSDR 427.
Serial Nos. 88279409 and 88279448 (Consolidated)
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reseller witness Mr. Parasopoulos also testified that “[c]ustomers often confuse
[Applicant’s] brand rocker switches with ‘Carling style’ switches made in China, and
believe that [Applicant’s] product is defective because the actuators will not fit all
‘Carling style’ rocker switches, something they have been lead to believe by resellers
marketing those products.” Parasopoulos Decl. ¶ 12.
Applicant argues that “[o]f all the evidence Applicant has submitted, this
indisputable, intentional copying of the applied-for Mark is perhaps the most
compelling of all.” Id. at 16. The Examining Attorney acknowledges that “Applicant
has provided evidence in support of the claim that others intend to style their goods
after the Applicant’s, however, evidence of intentional copying of a product design is
not probative of acquired distinctiveness.” 8 TTABVUE 8. He argues that “[w]here
the proposed mark is a product design, the copier may be attempting to exploit a
desirable product feature, rather than seeking to confuse customers as to the source
of the product.” Id. (quoting In re Van Valkenburgh, 97 USPQ2d 1757, 1768 (TTAB
2011)).
The testimony of Applicant’s witnesses regarding mistaken product returns is
directed to entire rocker switches, not simply the Contura V actuators, Wiegard Decl.
¶ 5; Loera Decl. ¶ 6, and the webpage displaying the “Carling Style Switch”
description set forth above refers to the entire switch, not just its actuator.42 As shown

42 Applicant’s witnesses do not provide specifics as to the number of “copycat” products and
the number of their sellers, the number of returns and their trend line, and the like, and they
do not provide examples of the “copycat” products that have been mistakenly returned to
Applicant. Without reviewing those products, we cannot determine the extent, if any, to
which the copying, and the mistaken returns, are attributable to the specific features that
Serial Nos. 88279409 and 88279448 (Consolidated)
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in the application drawings reproduced above, Applicant does not claim trade dress
rights in the designs of the entire switches, but rather only in certain features of their
actuators. We cannot infer, from what appears to be copying of the various features
of the designs of entire switches, not just their actuators, that Applicant has separate
and distinct trademark rights in the specific claimed features of the Contura V
actuators alone. Even if the copying and the mistaken returns were driven by the
similarity in appearance of the “copycat” switches to Applicant’s switches, we cannot
find from this evidence that the particular features of the actuators for which
Applicant seeks registration are recognized as Applicant’s marks. See Kohler, 125
USPQ2d at 1518 (“We cannot directly infer from the copying of three-dimensional
trade dress containing numerous elements, including color, that Applicant has
separate and distinct trademark rights in its claimed ‘configuration of an engine with
an overall cubic design’ and ‘complementary lines, beveling, and shapes.’”); In re Odd
Sox LLC, 2019 USPQ2d 370879, *3-4 (TTAB 2019) (because copying was “not limited
to the applied-for trade dress alone, it does not show that the copier perceived the
trade dress by itself as a source indicator or believed that consumers would rely on
the trade dress alone as an indicator of the source of the goods.”); In re Fantasia
Distrib., Inc., 120 USPQ2d 1137, 1145 (TTAB 2016) (where copying was not limited

Applicant seeks to register as opposed to the overall appearance of the switches, or what Mr.
Loera describes vaguely as the “same outer design as Carling’s switches.” Loera Decl. ¶ 6.
Serial Nos. 88279409 and 88279448 (Consolidated)
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to claimed diamond design, Board could not “conclude that it demonstrates the
source-indicating nature of the diamond pattern.”).43
Moreover, although Mr. Peplau testified that Applicant “has actively monitored
the market for any copiers of these design configurations,” Peplau Decl. ¶ 10, there is
no “evidence that Applicant has attempted to stop any such alleged misuse, or to
enforce its claimed trademark rights against these or any other third parties,” id. at
*4, even though Applicant laments that following the expiration of the ’231 Patent,
copycat switches “have been quickly popping up at an alarming rate.” 9 TTABVUE 4-
5. Applicant’s inaction undercuts its claim that the specific features of Applicant’s
actuators for which registration is sought have acquired distinctiveness. Cf. In re
Serial Podcast, LLC, 126 USPQ2d 1061, 1078 n.49 (TTAB 2018) (while copying in a
word mark case may be significant evidence of acquired distinctiveness, “if left
unchecked it can result in the weakening of rights in a mark, or even abandonment.”).
We find that Applicant’s evidence of copying and product returns has some
probative value on the issue of acquired distinctiveness, but lacks the specificity to

43 The record evidence, including the evidence of the return of entire switches to Applicant,
is not inconsistent with the desire of competitors to copy aspects of the overall switch designs
to take advantage of “desirable qualities or features,” Odd Sox, 2019 USPQ2d 370879 at *4,
as opposed to an intention to pass off the switches and actuators as Applicant’s. For example,
the use of the term “Carling Style Switch” on the webpage shown above is not inconsistent
with an intention to describe the seller’s switch as similar in nature or style to Applicant’s,
rather than as coming from Applicant itself. A “Basic Info” page regarding that product
discusses several product specifications and notes that the switch is sold under the MAIYU
mark. September 21, 2019 Response to Office Action at TSDR 427. A webpage for another of
the “copycat” products describes the particular switch as an “ARB Style Orange LED Rocker
Switch Backlit,” id. at TSDR 434-35, and states that it is the “[s]ame size as the Carling and
ARB switches.” Id. at TSDR 435. These descriptions of the switches are more consistent with
an intent to make a product compatibility or substitutability claim than with a predatory
intent to pass off the switches or the actuators as Applicant’s.
Serial Nos. 88279409 and 88279448 (Consolidated)
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show that the copying of multiple features of Applicant’s switches establishes that
the copyists and consumers recognize the specific actuator features for which
Applicant seeks registration as Applicant’s marks.
6. Summary44
“In a product design application, the critical inquiry is whether the product design
is being used and advertised in the marketplace in such a manner that consumers
associate the product design with a particular applicant, and therefore view the
product as emanating from a single source.” In re Koninklijke Philips Elecs. N.V., 112
USPQ2d 1177, 1187 (TTAB 2014). Applicant’s public-facing use and display of its
actuators in a handful of advertisements and catalog pages for its products do nothing
to encourage consumers to associate the specific applied-for designs with Applicant.
Applicant’s evidence regarding purchaser association of its claimed marks with
Applicant is too limited in quantity and quality to have significant probative value.
Applicant’s period of presumed exclusive use of the applied-for designs is too short in
the context of the record as a whole to have significant probative value. Applicant’s
evidence of unit and dollar sales lacks the necessary context to enable us to determine
the extent to which the applied-for marks have been exposed to consumers, and, more
importantly, the raw figures do not demonstrate the success of those sales in creating
an association between Applicant and the applied-for designs. Finally, while
Applicant’s evidence of copying and mistaken returns of products to Applicant
indicates that some features of Applicant’s switches have been copied for some reason,

44 There is no record evidence regarding unsolicited media coverage, the final Converse factor.
Serial Nos. 88279409 and 88279448 (Consolidated)
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the record is sufficiently ambiguous as to what features were copied and why to make
the evidence of copying insufficient, when considered together with the other evidence
in the record, to permit an inference that Applicant’s actuator designs alone have
acquired distinctiveness and that Applicant has met the high standard for showing
acquired distinctiveness.
Decision: The refusals to register are affirmed.