## Facts

- Joanne Slokevage applied to register, on the Principal Register, a trade dress used on clothing (including pants, shorts, dresses, and skirts).
- The applied-for mark was a garment configuration on the rear of the clothing consisting of a “FLASH DARE!” label in a V-shaped background plus “cut-out areas” on each side.
- The cut-out areas were described as a hole in the garment and a flap attached with a closure device.
- Slokevage already held separate protection for elements of the design, including a design patent covering the cut-out area design, a Supplemental Register registration for a mark representing the cut-out design, and a Principal Register registration for the word mark “FLASH DARE!”
- The examining attorney refused registration on the ground that the configuration was product design and therefore not inherently distinctive, offering the option to claim acquired distinctiveness under Lanham Act § 2(f) or to disclaim design elements.
- Slokevage declined to submit § 2(f) evidence and declined to disclaim any design elements, arguing the trade dress was inherently distinctive.
- The Trademark Trial and Appeal Board (TTAB) affirmed, finding the configuration was product design (not inherently distinctive) and that the applied-for mark was not unitary.
- Slokevage appealed to the Federal Circuit.

## Issues

1. Whether the applied-for clothing configuration constitutes product design trade dress rather than packaging or other inherently distinctive trade dress.
2. Whether product design trade dress may be inherently distinctive for Principal Register registration absent proof of acquired distinctiveness.
3. Whether the combination of the word/label and cut-out design is a unitary mark such that disclaimer of separable elements is improper.

## Decision

- The Federal Circuit affirmed the TTAB’s refusal to register the configuration on the Principal Register.
- The court held substantial evidence supported the TTAB’s finding that the claimed trade dress was product design incorporated into the garments’ structure and appearance.
- Because the trade dress was product design, it could not be inherently distinctive and required proof of acquired distinctiveness; Slokevage provided none.
- The court also held substantial evidence supported the TTAB’s determination that the mark was not unitary, making a disclaimer of separable, non-registrable design components permissible if registration were sought for other elements.

## Legal Principles

- Trade dress that constitutes product design is not inherently distinctive and is registrable on the Principal Register only upon proof of acquired distinctiveness (secondary meaning).
- Clothing configurations formed by physical modifications to the garment (e.g., holes, flaps, and structural cut-outs) are treated as product design rather than packaging or mere labeling.
- The Federal Circuit reviews TTAB factual findings (including product-design classification and unitariness) under the substantial evidence standard.
- A mark is not unitary when its elements do not merge into a single inseparable commercial impression; separable elements may be subject to disclaimer as a condition of registration.

## Conclusion

The Federal Circuit sustained the refusal to register a rear-garment configuration combining a “FLASH DARE!” label with cut-out/flap features because it was product design requiring secondary meaning, and it upheld the finding that the elements were not unitary, supporting the USPTO’s disclaimer requirement.


In re Slokevage, 441 F.3d 957 (Fed. Cir. 2006)