shape or configuration of the product the bands do not define the shape or configuration of the product any more than if you painted a design on the flashlight  the bands do not define the shape or configuration of the product they conform to the shape of the product and because the board in correctly interpreted the dual band to be a product shape mark at a flawed functional and secondary meaning analysis of the mark the evidence submitted by magg that the dual band design has been unique to mag since the mag charger flashlight was first sold in the early eighty's and do have two distinctive ban located on the barrel and which contrast with the barrel is unique in the field of flashlights and has been for thirty years but the board here at the band's work it's a conductive surface transferring energy from because the bands while they have a functional element also have non functional elements and it's clear that you can have a trademark which  comprises both functional and non functional elements and in this case the non functional elements if you interpret the market as including contrasting bands that's not functional if you consider also though that the location of the bands on the flashlight is also not functional the board disregarded the contrasting bands far because they indicated that the application did not include any suggestion that there were contrasting bands but that not description of the mark clearly talks about the location of the bands being on the barrel of the flashlight so there were those nonfunctional elements which the board never considered the board because it i think felt that this was a product shape a trademark also overly emphasized the patent and gave a great amount of attention to the traffic's case the t were claimed as part of the invention and that was the central advance claimed in the expired utility that the traffic's devices cases the springs also the defined in large part the shape of the product cap and relied upon by the board in brinkman in this case is mags six seven three pat contrary to the board's conclusion the sixty seven three patent does not describe the useful purpose of the dual bands and does not claim dual benz in fact  misconstrued claim two of the six seven three patent by referring to circum parental bans when the claim recites only a single conductive strip the six seven three patent says nothing about continuous war three hundred sixty three contact being an advantage and it is not listed as an object of the invention contrary to the board's conclusion the positioning of the bands is not fundamentally covered by the expanded expired no advantages described regarding the positioning of the conductive strips on the flashlight  six seven three that is also of colorblind patent does not care if the rings disclosed in the contrast with the barrel and it certainly does not suggest that having contrasting i've already indicated that the original drawing and the specimen of both show contrasting bands but beyond that it's implicit in any trademark that the mark be a noticeable attention getter the board and its decision ignored that standard and adopted instead  the standard of subtle perception would be sufficient to satisfy a trademark the use of well let me back  maggot in this case provided an expert in product isn't and manufacturing professor siegel and two other witnesses mags director of engineering mr haas the warmth and the inventor and designer of the mag charger flashlight mr maglica all three have a technical background in the design and manufacture of flashlights mag also provided a witness mr to chini having an extensive background in the cost of manufacture flashlights all of these witnesses provided testimony on the issue of functionality brinkman did not offer any expert testimony or any testimony by someone having a technical background with regard to this issue  they use of contrasting bands on the barrel it is not essential to the use or purpose of the flashlight and having such bands does not affect the cost or quality of the flashlight there is nothing in the record that having bands contrasting with the barrel hinders competition the location of the bands on the barrel of the flashlight is also not essential to the purpose of the flashlight nor does it affect the cost or quality of the flashlight mr bigley good testified that the that relocating the bands would cross would require only a few simple modification so it was up to brickman as the opposer to establish prime aphasia that the design is functional if the mark is construed to consist of two separate bands which encircled in contrast with the flashlight barrel then brakeman has not attributed any function to this contrasting design and if the band design as defined by the description in the drawing also located the position of the design on the flashlight  no evidence as been submitted by brickman to show that the location of the design on the flashlight is functional with regard to advertising mag has pointed out in its briefs that advertising with respect to this three hundred sixty degree contact feature is outdated and limited  and is simply one of many for forty of advantages attributed in the advertising to the flashlight this feature is not essential to the performance of the flashlight the flashlight will switch on and off without being hundred sixty degree cond it will provide light without the three hundred sixty degree contact and the battery can be charged in the flashlight without three hundred sixty degree contact and to the extent that such a feature is advantageous it is offset by disadvantages  for example the three hundred sixty degree contact feature as the does advantage in not positioning the switch when the flashlight because in the cradle so that the switch  easily accessed when it is removed from the cradle and unlike other rechargeable systems were matching the tense are used to hold the flashlight in place the mag charger must be held in place with a cradle like conforms to the head of the flashlight and this requires the cradles to be larger than in other   contact would hinder competition or its demand in fact the board totally ignored the most important evidence relating to this issue the six seven three  been expired for over ten years but no other flashlight manufacture including brick but as offered a rechargeable flashlight with three hundred sixty degree contact mr w we take great issue with the remarks that counsel made about the issue of perceptibility and contrast of the mark clearly the board recognize that to be a trademark the dual bands have to be perceptible maggots trueman says well the market is at their contrast and we don't really understand what the difference is between perceptible and contrast ing at most it's a matter of degree and one thing the court needs to keep in mind is that this is a rechargeable battery system which depends upon physical contact between the bands on the flashlight and some kind of contacts in the charging cradle in order to complete the electrical circuit which will then recharge the rechargeable battery inside the flashlight instrument and my client both make primarily machines aluminum flashlights the bands obviously have to be metallic in order to form contacts for completing the electrical recharging circuit so that means that in order to separate out or insulate the two bands on the flashlight there has to be at least two insulators between one of the bands and the remainder of the flashlight want to each insulator out on each side of one of the bands so it's not shorted out by the rest of the machined aluminum flashlight but then they could be separated by simply one nonmetallic insulating ring if you will in order to to separate them so that there was not an electrical short in the system the point of this is is that no matter how this suppose that trademark is implemented you're going to have different cereals you're going to have some metal materials you're going to have some plastic materials almost inherently there's going to be a what the board fail to realize use is that the contrast being aspect of the bands really is not a function what they're really doing is making a back to argument that are the only ones who should be out loud to have these two bands be visible to the consumer and everyone else if they want to practice the two bands ought to find a way to make them invisible we submit that's simply a theoretical argument a possibility it hasn't been demonstrated by mag instrument that it is even possible to completely obscure and make completely invisible these two here but i also have a design which me why can't i have my own pet well that could be said in almost every product feature case maxes it's not a product configuration but it's a product feature the supreme court in traffics devices disposed of that argument that case came to the supreme court from a court of appeals decision which said that the purported owner and traffic's device could have trade dress rights in a dual spring design and one of the arguments that impressed the court of appeals in that case was that the defendants rule springs could be enclosed in a box or inside a framework so they weren't visible and said that and the plaintiff in that case in the court of appeals agreed with them that that was an alternative for the defendant and the supreme court disposed of that and they sat because  spray design is functional it is unnecessary for competitors to explore designs to hide the springs say by using a box or framework to cover that the dual spring design assures the user the device will work that's exactly the situation these two bands assure the user that the device has the ability to make the contacts inside the charging cradle that will complete electro recharging circuit and then the supreme court would on a set if buyers are assured the product serves its purpose by seeing the operative mechanism that in itself serves an important market need it would be at cross purposes to those  and something of a paradox were we to require the manufacturer conceal the very item the user seeks and we think that's a complete answer to this argument about the dual band supposedly having two different functions and ornamental or trademark vocation and they are a utilitarian function as i say that could that could be the argument and every kinds and what we say is if the argument that mag's making was the argument is you have to achieve perfection to hide the bans no competitor should be under that obligation in order to avoid mag instruments reported trademark crimes and we have no assurance of maggots never give us a nation's that if the bans are all perceptible they still won't charge infringement and threaten that competitor with  we have no way of knowing on the range of slightly perceptible to maximum contrast where maggie is from it would draw the line and say good enough we're not going to sue you or too much we are going to sue functionality we differ with mag instrument in terms of the importance of the pattern in this case we say this is essentially another graphics license case where this court could stop with the patent and simply conclude that in and of itself it's enough evidence  continue to mark the packaging and the owner's manual with a patent the entire time thereby subjecting themselves potentially to a false marketing forbidden and sending a message to the marketplace we have a patent on this product and the whole purpose of the post martin statute was to say we're not going to force people to go a little research and find out if that's really true so they continue to mark this product with a patent and then a few years later they added both to the package and to the owner's manual a representation that they claimed essential a forty three a writes in the door bams so they've been sending the message to the marketplace the entire time between their patent and their packaging and owner's manual that they rights in and therefore we think that the idea that we've gone ten years without anybody else using a dual band design is really not evidence at all of anything  it is true that the pattern is not as explicit about the functional characteristics or bandages of the bill brown as perhaps one would like but we need to remember that the pattern is directed through persons only art you can't read the pattern without appreciating that the point of the dual names is that you get complete three hundred sixty degree ability to place the flashlight in the  figures what is it that you think most is most telling and leading us to conclude that the dual well design is found in the path we think if you just look at figures to win three you can tell that this flashlight can be placed in this charging cradle anywhere in taishan that much so far so good i'm specifically interested in the dual band of the flashlight but that's when you're saying figure four are you talking about and we're like page twenty eight forty nine of the joint appendix i'm sorry h twenty eight forty nine of the joint appendix yes credit ok now that has to as i read them two parts of figure three one of which is the flashlight and the other of which is the cradle and then figure for appears are you saying that the two bands are all the over here on contact member and then the two intervening parts which are ninety eight one hundred or insulating rings to separate the adam or contact member want to for from the rest specifically on my concern here because i think i may be missing something very fundamental and if i am i want you to correct me right at the outset so i don't walk down the path too far but if i look at that figure three and i'm looking for an an analog to that to band structure what i'm seeing is a single band with two mm other structures on either side of the band and when you look when you point me to figure fo again i'm seeing one of four which is the single band that i'm seeing in figure three and then one zero two which is just part of the broader part of the of the fleshlight i'm not seeing two separate bands or depressions going around the the fleshlight am i missing something in those particular figures viewed in appearance in the flash why because in the ordinary course you don't sell and i think anyone who are skilled understand you don't sell these flashlights in their barrow aluminum sta ninety eight in one hundred i take it or the insulating material correct ninety eight more than three yeah right yes so the bands here that conduct are one zero four and one  to correct it's correct ok but it well i think i have you and i think you and i would only i would only also point out your honor that in the claims the claims talk about conductive strips t different conduct people strips so that the claims actually contemplate that these will be not just as the second strip will not just be broadly the overall flashlight but in fact will be an identifiable contact on the flashlight and as i said this flashlight may or may not be aluminum it may be plastic with these two pounds on and in which case they might be i got a pliable act mr clark your  with regard to the patent there's a misunderstanding here because the claims you not talk about conductive strips they talk about a single conductive strip which is  perception means this comes up often in trademark cases where a very use is claimed because the mark is not a noticeable attention getter so this is not unusual in trademark cases with regard to the law that some elements of a design may registration of a matter which as a whole is functional furthermore as indicated in norwich a feature that merely accommodates a useful function does not mean it is essential to the use or purpose of the article and to conclude if the trademark is construed to include contrasting bant as we say it should be there is no evidence to support the board's finding of functionality s it should be because that's the way it's described been shown in the drawing there is no evidence that the positioning of the mark is functional brinkman again as not submitted any