Turns Out You Can’t Trademark A Circle Towel

Reader don cox alerts us to an appeals court ruling that tosses out a trademark on a circular towel. The backstory is a bit involved and actually involves actor Woody Harrelson and filmmaker Bobby Farrelly of the Farrelly Brothers, but the key point is that this guy, Clemens Franek, started selling round beach towels, and received a trademark from the USPTO for “configuration of a round beach towel.” As the court amusingly notes, Franek came up with this idea the same year as Huey Lewis had the hit song Hip to be Square. However, many years later, Franek saw that Target and Walmart will selling round beach towels made by another company, Jay Franco & Sons, and sued the two retailers. Jay Franco, in response, sued to get Franek’s trademark tossed out. The lower court ditched the trademark and now the appeals court agreed. You can see the decision here:




The main problem? Trademarks are only supposed to apply to non-functional designs. Things like logo or a slogan don’t serve any direct purpose on the product. Unfortunately, a circular beach towel serves a purpose, and much of Franek’s advertising focused on the functional benefits of a round towel (something about moving with the sun). Basically, they suggest he could have tried to secure a design patent on this, but not a trademark, because that would limit anyone’s ability to improve upon the round towel:


To put things another way, a trademark holder cannot
block innovation by appropriating designs that undergird
further improvements. Patent holders can do this,
but a patent’s life is short; trademarks can last forever,
so granting trademark holders this power could permanently
stifle product development. If we found Franek’s
trademark nonfunctional, then inventors seeking to
build an improved round beach towel would be out of
luck. They’d have to license Franek’s mark or quell their
inventiveness. That result does not jibe with the purposes
of patent or trademark law.

Furthermore, the court points out that the practical reality here is that he was trying to limit the use of such a basic design element as a circle:

Franek wants a trademark on the circle. Granting a
producer the exclusive use of a basic element of design
(shape, material, color, and so forth) impoverishes other
designers’ palettes

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