As applied to zipper closed bags made from bubble wrap. Glossier Registration Certificate
The Examining Attorney refused the application on the basis that the that the bubble wrap served the function of protecting the enclosed items during shipping. The Examining attorney provided evidence of empty bubble wrap envelopes available for purchase. The application was further rejected for lack of distinctiveness, with the Examining Attorney in this instance citing packing for toiletries that includes bubble wrap lining.
In response, Glossier amended the application to depict the bubbles and zip closure in dotted line, thereby disclaiming them as features of the mark. Glossier also entered a Section 2(f) claim of acquired distinctiveness. Arguing that use of the color pink provides no “utilitarian, functional or competitive advantage” to the use of bubble-lined zip-top pouches to package cosmetics, Glossier further submitted its own declaration, as well as 98 customer declarations averring to the distinctiveness of Glossier’s pink packaging. Evidence of numerous advertising campaigns, third party social media posts and other media coverage was also submitted. The prosecution documents are available at https://tsdr.uspto.gov/#caseNumber=88422357&caseType=SERIAL_NO&searchType=statusSearch
The Office responded by registering the mark without further comment from the Examining Attorney. An application directed to the use of the color pink to the inside of a box remains pending. See, USTA 8822355. The below is a Shutterstock image of a bag that would appear to violate Glossier’s trade dress registration, if sold in conjunction with cosmetics.