IP Law Daily, TRADEMARK—TTAB: Board rejects trademark application for medical LED device configuration, (Jul 16, 2025)

By George Basharis, J.D.

TTAB finds product design has not acquired distinctiveness despite 18 years of use and $29 million in sales.

The Trademark Trial and Appeal Board has refused to register a product configuration mark sought by Translite, LLC for its “Veinlite EMS Pro” medical lighting device, holding that the shape of the product lacks acquired distinctiveness under Section 2(f) of the Trademark Act. The decision leaves in place a final refusal issued by the U.S. Patent and Trademark Office after concluding that the LED device design, though used for nearly two decades, remains a nondistinctive product configuration in the eyes of consumers (In re Translite, LLC, No. 97925710 (T.T.A.B. July 10, 2025)).

Application and prosecution history. Translite filed an application in May 2023 to register the three-dimensional shape of its LED lighting apparatus, describing the product as a device with a rectangular base extending into a curved top that resembles a sideways “C,” containing an eye symbol with a strikethrough and a side button. The application was based on first commercial use dating back to 2006.

Initially, the examining attorney objected to functional aspects in the drawing, namely the curved top and C-shaped lighting ring. These elements had to be shown in dotted lines to disclaim them as non-source-indicating features. Translite submitted a revised drawing with functional elements shown in dotted lines, removed the word “TRANSLITE,” and amended the description accordingly. The trademark office accepted those changes but subsequently issued a new refusal on the grounds that the mark is a nondistinctive product design lacking acquired distinctiveness.

Functionality not at issue on appeal. Translite’s appeal focused heavily on arguments that its configuration is nonfunctional. However, the Board made clear that functionality was not at issue because the examining attorney had already accepted the revised drawing that excluded functional features from the claimed mark. The only issue on appeal was whether Translite had proven acquired distinctiveness under Section 2(f) of the Trademark Act, a burden that, according to the Board, remains particularly heavy for product configuration marks.

Unlike product packaging, which can be inherently distinctive, product designs can only be registered with proof that consumers associate the configuration with a single source. As the Board explained, consumers tend to view product designs as functional or aesthetic features, not as trademarks.

Evidence of distinctiveness deemed insufficient. To support its claim of distinctiveness, Translite submitted a declaration from its president asserting 18 years of exclusive use, more than 55,000 units sold, and over $29 million in revenue. The company also submitted consumer declarations, photographs of trade show booths, screenshots from Amazon and its website, and embedded a report referencing its product inventor. Still, the Board concluded the showing was inadequate.

The decision emphasized that longstanding use, even nearly two decades, is not determinative for product configuration marks. Citing multiple cases, the Board noted that even use spanning 27 or more years has been found insufficient where consumers lack evidence associating the design with the producer. In Translite’s case, the sales and advertising evidence failed to demonstrate that the configuration alone served as a source identifier.

The Board found no context in the record to assess the significance of the sales figures or their meaning relative to the relevant market. Advertising materials prominently displayed the “Veinlite” word mark alongside the product, leaving unclear whether consumers viewed the product shape itself as indicative of origin. Images of the product from various websites, as well as promotional photos from trade shows, did not highlight the design as a trademark in isolation.

Consumer declarations had limited value. Translite submitted four declarations from customers, each attesting to long-term use and instant recognition of the product configuration. However, the Board found the declarations unpersuasive for several reasons.

First, they constituted a negligible portion of the 55,000-plus customer base. Second, the statements were identically worded and clearly drafted by Translite rather than composed independently by the declarants. Third, the declarations referenced the overall product appearance, including the disclaimed dotted-line features such as the C-shaped LED ring, without indicating whether the declarants understood which elements were part of the claimed mark. For these reasons, the Board gave the consumer statements little weight.

No surveys or independent media coverage. The Board also found that Translite had not submitted any consumer surveys, independent press coverage, or evidence of copying—factors that typically strengthen a claim of acquired distinctiveness. A report from a professional society that Translite cited focused on the achievements of the product’s inventor but did not discuss the configuration or its significance to consumers. Without such corroborating evidence, the Board found that Translite had failed to bridge the gap between popularity of the product and consumer recognition of the specific design as a trademark.

The Board reiterated that the central question in a Section 2(f) analysis is not simply how long the product has been used or how many units have been sold, but whether those efforts have been effective in creating a link in the consumer’s mind between the product configuration and the source. Based on the evidentiary record, the Board found Translite had not met that burden.

The Case is Serial No. 97925710.

Judge: Stanley, L.

Attorneys: Stewart L. Gitler (Welsh Flaxman & Gitler LLC) for Translite, LLC. Ian Krussman for the USPTO.

Companies: Translite, LLC

Cases: Trademark USPTO