Stone & Stone Law Blog The Trademark Trial and Appeal Board has affirmed a Section 2(e)(5) functionality refusal of Equiper, LLC’s application to register the three-dimensional configuration of an office chair wheel. The decision issued July 30, 2026, in an opinion by Judge Catherine Dugan O’Connor, is not precedential. In re Equiper, LLC, Serial No. 98448363.
Equiper sought registration of the wheel design as a trademark. The Examining Attorney refused registration on the ground that the configuration is functional under Section 2(e)(5) of the Lanham Act.
The Board applied the four-factor test from the CCPA’s Morton-Norwich decision to assess functionality. It focused its analysis on the first two factors and found each satisfied.
On the first factor, the Board relied on a third-party utility patent. It reasoned that a utility patent claiming the features of a proposed mark can serve as strong evidence of functionality, and that a patent’s specification and drawings may show functionality even where the relevant features are not expressly claimed. The Board stated that a utility patent need not be owned by the applicant to be relevant under the first factor, and that a third-party patent qualifies.
On the second factor, Examining Attorney Gregory Gutierrez submitted advertising from both Equiper and third parties promoting the utilitarian benefits of the design. The Board found that this promotional material supported a conclusion that the mark, viewed as a whole, is functional.
Because the first two Morton-Norwich factors weighed in favor of a functionality finding, the Board did not need to reach the third and fourth factors. It nonetheless addressed them for completeness and found both to be neutral.
Primary Sources: In re Equiper, LLC, Serial No. 98448363 (TTAB July 30, 2026)
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