Two entrepreneurs tried to register the shape of a pancake cut into eight slices as a trademark. Their pitch to the USPTO: the design is "shareable," "dippable," "[a]ny time-able," requires no utensils, and lets you eat pancakes "seated, standing up, or walking." Family members can "reach in to grab a slice or use a pie server to obtain a piece" for "dipping into a sauce such as maple syrup or blueberry compote."

The Trademark Trial and Appeal Board's response, essentially: that's just shit you can do with a pancake.

In re Misty Everson and Christine Maynard, Serial No. 97104306 (March 31, 2026) [precedential].

Battered by Their Own Arguments

Trademark law doesn't protect product designs that make the product work better — that's patent law's job. When a design is "functional," meaning it gives the product a utilitarian advantage, it's an absolute bar to registration. No amount of brand recognition can overcome it.

Everson and Maynard had a "Brand Style Guide" that described their eight-slice pancake as a "new team-sized meal option" — and during prosecution, they explained to the examining attorney exactly why the design is useful. Every statement about shareability, portability, no-utensil convenience, and dippability is a description of a utilitarian advantage. Under the functionality doctrine, that's cooked.

The examining attorney also submitted evidence from fourteen third-party websites showing pancake recipes with photographs of pancakes cut into roughly equal wedges — often eight wedges. When other people in your industry are already doing the thing you're trying to claim as exclusively yours, that's a significant problem. It suggests the design isn't identifying you — it's just describing the product.

The Board found this factor "strongly" supported the refusal.

"But There Are Other Ways to Cut Pancakes"

The applicants tried to argue that alternative designs existed — six-slice, seven-slice, and ten-slice configurations, plus stacked pancakes with a wedge removed.

The Board wasn't flipping for it.

As the TTABlog's John Welch noted: "I find it a lot easier to cut eight more-or-less equal slices than seven or ten." Eight slices is the standard for pizzas, pies, and cakes for a reason — it produces evenly sized servings and is easy to execute. The Board found that granting exclusive rights over it would put competitors at a real disadvantage.

That's Just What Pancakes Look Like

In a last-ditch effort, the applicants argued that the stippling in their mark — which they said represented "a texture" and "a gradient of the texture" — was a protectable design feature.

The Board looked at the photographs of pancakes in the record and concluded that this texture is simply what happens when you cook a pancake. It's a byproduct of the manufacturing process, like the color of sandpaper or the grain pattern on a rifle barrel — both of which the TTAB has previously found functional for the same reason.

The Hershey Bar Got Away With It

What makes this case especially interesting is the contrast with the TTAB's 2012 decision in In re Hershey Chocolate and Confectionery Corporation — where the Board reversed a functionality refusal for Hershey's iconic 12-segment candy bar configuration.

Same basic concept: a food product divided into uniform segments. Different outcome.

Hershey's design included a specific combination of elements — twelve equally-sized recessed rectangular panels arranged in a four-by-three grid, each with its own raised border, all within a larger rectangle. The Board found that while scoring a candy bar into segments is functional (it helps you break off pieces), the overall combination — particularly the decorative raised border — reduced the degree of utility enough to make the mark as a whole non-functional.

Hershey also brought receipts: over 40 years of continuous use, $4 billion in sales over a 12-year period, $186 million in advertising, a consumer survey showing 42% unaided recognition, and evidence that Williams-Sonoma had copied the design for a brownie pan.

Everson and Maynard brought a Brand Style Guide explaining why their pancake is easy to eat while walking. That's a recipe for a refusal, not a registration.

How to Avoid a Sticky Situation at the USPTO

The lesson from this case isn't "don't try to register product designs." Product configuration marks are difficult to obtain, but they exist — Hershey's bar, the Coca-Cola bottle, the Toblerone triangle.

The lesson is this: if you find yourself describing how your design works rather than what it looks like, stop and reconsider. When your marketing copy is full of words like "shareable," "convenient," and "no utensils needed," you're describing function, not source identification. And every one of those words becomes evidence against you.

The better approach is to identify what's genuinely unique about your design — the element that's distinctive to your business rather than useful to the consumer — and build your application around that. You don't need to design the Sagrada Família of pancakes to get a registration. You just need something that serves as a visual signature rather than a description of how the product works.

Everson and Maynard walked into the USPTO, explained in great detail why their pancake design is functional, and then asked for trademark protection. That's not a legal strategy. That's a short stack of bad decisions.

Table of Authorities

• In re Misty Everson and Christine Maynard, Serial No. 97104306 (TTAB March 31, 2026) [precedential]
• In re Hershey Chocolate and Confectionery Corporation, Serial No. 77809223 (TTAB June 28, 2012) [not precedential]
• In re Morton-Norwich Products, Inc., 671 F.2d 1332 (C.C.P.A. 1982)
• Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995)
• In re Becton, Dickinson and Co., 675 F.3d 1368 (Fed. Cir. 2012)
• Lanham Act § 2(e)(5), 15 U.S.C. § 1052(e)(5) (functionality bar — Principal Register)
• Lanham Act § 23(c), 15 U.S.C. § 1091(c) (functionality bar — Supplemental Register)