Omar Khalid
The small plastic closures used to seal bread, pastries, and fruit bags are subject to trademark disputes. For instance, in a trademark opinion, Judge Koeltl ruled in favor of a Dutch company, Schutte, which sought to cancel the trademark protection of Kwik Lok, the dominant US maker of bag closures. The ruling highlights the importance of trademark protection for specific product categories. The US Patent and Trademark Office (USPTO) divides marks into 45 classes, with the first 34 focusing on goods and the remaining 11 on services. Businesses must register their trademarks under the most relevant category, and incorrect classification can lead to restarting the application process.
| Characteristics | Values |
|---|---|
| Judge's opinion | Judge Koeltl rejected trademark protection for small plastic squares that close bread bags |
| Trademark owner | Kwik Lok, a dominant U.S. maker of bag closures |
| Trademark seeker | Schutte, a Dutch company that makes bag closures |
| Trademark class | 21 |
| Trademark class definition | Small, hand-operated utensils and apparatus for household and kitchen use, as well as toilet utensils, glassware, and articles in porcelain |
| Trademark fee | The USPTO charges a set filing fee per class of goods or services |
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What You'll Learn
Judge Koeltl rules against trademark protection for plastic bread bag closures
Judge Koeltl has ruled against trademark protection for plastic bread bag closures, siding with the Dutch company Schutte, which makes "bag closures" or "small plastic closures that are used to close bags of pastries, bread, and fruit". Schutte had sought to cancel the trademark protection of Kwik Lok, the dominant US maker of bag closures.
Kwik Lok had, for decades, been the only manufacturer and distributor of plastic square closures that are applied automatically by machines to plastic bread bags, fruit bags, and other food bags. They had prevented competitors from using similar-shaped closures by claiming trademark rights to the shape of the closure. These closure shapes were designed to work with the most commonly used machines that apply the plastic closures to the food bags.
Judge Koeltl ruled in favour of Schutte on the grounds that functional design elements cannot be protected by trademark laws. He explained that bag closures are products of considerable engineering and that the products' shape affects how the closures are produced, stored, and how they work in bag-closing machines. The products' configuration also affects how efficiently the closure serves its purpose of closing bags for various forms of merchandise.
The ruling opens up the market to competitors, allowing them to sell competitive bag closures that would be compatible with commonly used machines, potentially ending Kwik Lok's decades-long domination of the market for those closures.
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Kwik Lok loses trademark protection for plastic bag closures
Kwik Lok, a dominant US maker of bag closures, has lost its trademark protection. Trademark protection was cancelled by Judge Koeltl, who granted judgement in favour of Dutch company Schutte Bagclosures Inc. in a case brought before the court. Schutte Bagclosures Inc. manufactures "small plastic closures that are used to close bags of pastries, bread, and fruit".
Kwik Lok had a registered federal trademark for its red logo, which was not at issue in this case. The main legal issue was whether Kwik Lok could assert trade dress protection in the design of certain bag closure products. Schutte argued that the shape of Kwik Lok's bag closure products that are covered by the '043 Registration and similar designs are functional and are not entitled to trade dress protection.
Kwik Lok's ''043 Registration was incontestable based on the registration approved by the PTO in May 1996. The registration covers multiple Kwik Lok plastic bag closure products with a square to slightly rectangular outer perimeter with bevelled corners and a triangularly-shaped slot opening. This includes the W-Series, the Y-Series, and J-Series closures.
Kwik Lok's bag closures are designed to be reused and are simple to use. They offer a practical, time-saving, and low-cost way to keep food fresh. The closures can be printed on with alphanumeric text and/or line drawings and are available in seven colours. Kwik Lok has recently introduced Enviro-Lok, a polypropylene bag closure with 34% less plastic than the standard Kwik Lok closure, which still offers the same strength and reliability.
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Schutte wins judgement to cancel Kwik Lok's trademark
Schutte Bagclosures Inc., a Dutch company that manufactures "bag closures" or "small plastic closures that are used to close bags of pastries, bread, and fruit", sought to enter the US market. However, Kwik Lok Corporation ("Kwik Lok"), a dominant US maker of similar products, had already established itself in the American market and held a trademark for its bag closures. Schutte Bagclosures Inc. filed a lawsuit against Kwik Lok, seeking a declaration that its products, known as Clipps G, did not infringe on Kwik Lok's intellectual property. Schutte also sought declarations of non-dilution and invalidity, and an order for the cancellation of Kwik Lok's US Trademark Registration.
In the Schutte Bagclosures Inc. v. Kwik Lok Corp. case, Schutte argued that the shape of Kwik Lok's bag closure products, covered by the '043 Registration, and similar designs were functional and not entitled to trade dress protection. Kwik Lok, on the other hand, asserted its exclusive trade dress rights protected under the '043 Registration and unregistered trade dress rights. They also brought counterclaims under the Lanham Act for trade dress infringement, unfair competition, and trade dress dilution.
During a five-day bench trial, the court heard testimonies from witnesses, including executives and experts from both companies. The court considered all arguments and ultimately ruled in favour of Schutte, granting the following judgments:
- A declaration that the importation, manufacturing, marketing, distribution, sale, and commercial use of the Clipps G bag closure do not infringe or dilute any trademark or trade dress rights claimed by Kwik Lok.
- An order for the cancellation of United States Trademark Registration Number 1,972,043 on the grounds that the design is functional and not a proper subject of registration.
- Dismissal of Kwik Lok's counterclaims.
As a result of this judgment, Schutte successfully cancelled Kwik Lok's trademark protection for their bag closure products in the United States.
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USPTO divides trademarks into 45 classes
Small plastic closures used to seal bread bags can be subject to trademark protection. In 2020, Judge Koeltl granted judgment in favour of a Dutch company, Schutte, which sought to cancel the trademark protection of the dominant US maker of bag closures, Kwik Lok.
The United States Patent and Trademark Office (USPTO) divides trademarks into 45 different classes of products and services. The purpose of these classes is to allow different types of businesses to register their trademarks in categories most related to their core business. The first 34 classes consist of different broad categories of goods, while the last 11 classes consist of different broad categories of services.
Trademark classes are a way to organise the goods or services used in applications, assess fees, and aid in searching the database of registered and pending trademarks. Each category of goods or services is assigned a number from 1 to 45, also known as an international class. There are numerous items listed in each class, but goods and services are never in the same class.
The base filing fee for each class of goods or services is $350. The filing fee is based on the total number of international classes in an application and whether the applicant meets the requirements for the base application fee. For example, if you apply for a trademark for posters (Class 16) and shirts (Class 25), you must pay the filing fee for two classes, which is double the fee for a single class.
It is important to choose the correct class when applying for trademark registration. If the wrong class is selected, the application will be cancelled, and the fee will not be refunded.
Examples of trademark classes include:
- Class 1 – Chemicals
- Class 8 – Hand tools
- Class 14 – Jewelry
- Class 21 – Housewares and glass
- Class 35 – Advertising and business
- Class 42 – Computer and scientific
- Class 45 – Personal and legal
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Trademark classes affect registration fees
The United States Patent and Trademark Office (USPTO) divides trademarks into 45 different classes of products and services. The first 34 classes consist of different broad categories of goods, while the last 11 classes consist of different broad categories of services. The purpose of these classes is to allow different types of businesses to register their trademarks in categories most related to their core business.
The trademark class system also affects the registration fees that you pay. The USPTO charges a set filing fee per class of goods or services. For example, if you apply for a trademark for posters (Class 16) and shirts (Class 25), you must pay the filing fee for two classes, which is double the filing fee for one class. The base application filing fee for each class of goods or services is $350. So, if you have a clothing line of golf shirts, dress shirts, and t-shirts, these goods all fall under the same class, so your filing fee would be $350. However, if you also provide custom t-shirt printing services, you would have goods and services in two different international classes, and your filing fee would be $700 ($350 for each class).
There are additional fees for Section 1 and Section 44 applications that are incomplete or contain custom identifications of goods or services. You must pay these fees if you don't satisfy the base application requirements. This is intended to encourage more complete applications, improving examination efficiency and reducing pendency. One such additional fee is the $100 fee per class of goods or services if you don't include the required information for a base application. In most cases, you'll pay this fee when you file your application, but a USPTO examining attorney may determine that you owe the fee during the examination process.
You may also owe one or more additional fees when you file and during the examination process, depending on the completeness and complexity of your application. For example, you will be charged a $200 fee per class of goods or services if you provide your own custom descriptions of your goods and services. You'll pay this additional fee when you file your application, and if you later add any classes to the application, you will pay the base filing fee and the free-form text box fee for each added class.
After your trademark registers, you'll need to pay maintenance fees periodically to keep your registration alive. For example, every 10 years, regardless of the underlying basis of registration, you must submit a declaration of use or excusable nonuse and an application for renewal. This has filing fees of $325 for the declaration of use plus $325 for the renewal, equaling $650 per class of goods or services.
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Frequently asked questions
Yes, small plastic closures that are used to close bags of pastries, bread, and fruit can be subject to trademark.
Yes, you can apply for a trademark with the United States Patent and Trademark Office (USPTO).
It likely falls under Class 21, which includes mainly small, hand-operated utensils and apparatus for household and kitchen use.
The USPTO charges a set filing fee per class of goods or services. If your trademark falls under multiple classes, you must pay the filing fee for each class.
No, your filing fees will not be refunded if you list the incorrect class. You must restart the application process and pay the filing fee again for the correct class.
