Short Stack, Tall Problem: Branding Guides and Functionality at the TTAB

In its first precedential decision of 2026, the Trademark Trial and Appeal Board served up a cautionary tale in In re Misty Everson and Christine Maynard, Serial No. 97104306 (TTAB Mar. 31, 2026), involving three-dimensional product design trade dress of a pancake sliced into eight uniform wedges. The Applicant sought registration on the Supplemental Register for the configuration, but the Board ultimately refused registration altogether on functionality grounds. While the case walks through the familiar Morton-Norwich factors, what really flipped the outcome was not a utility patent or manufacturing efficiency, it was the Applicant’s own words.

Specifically, the Board gave significant weight to the Applicant’s internal “Brand Style Guide,” which highlighted the features the Applicant later tried to characterize as source-indicating. The guide characterized the sliced pancake format as “shareable,” “dippable,” and suitable for “life on the go,” and even compared the product to a pizza-style eating experience. The Applicant further elaborated during prosecution that the design allowed consumers to eat pancakes without utensils, share easily, and customize toppings slice-by-slice. In other words, the Applicant’s own materials and arguments made a compelling case—not for distinctiveness, but for functionality. Unsurprisingly, the Board found this evidence highly probative, noting that touting a design’s practical advantages is strong evidence of functionality.

The takeaway? Before you try to stack rights in a configuration mark, take a close look at how your own materials describe the design. Branding guides, pitch decks, and marketing copy may seem like harmless internal tools, but they can quickly become Exhibit A in a functionality refusal if they emphasize convenience, efficiency, or other utilitarian benefits. In short: if you want to argue that a design identifies source, make sure you’re not simultaneously selling it as the best way to eat breakfast on the run. Otherwise, you may find your trademark application—like these pancakes—cut into pieces.