I’ve mentioned before that just about anything distinctive that serves as a source identifier is capable of functioning as a trademark. This includes some unusual things, like sounds, that we don’t normally think of when we think about trademarks. Harley Davidson has a registered trademark for the sound made by the exhaust pipes on their motorcycles; NBC has a trademark for their distinctive chime sound heard in trailers for shows that they broadcast. Today, let’s consider product shapes as trademarks.
A distinctive shape of a product or it’s packaging can also serve as a trademark. The Coca-Cola Company owns a trademark registration for the distinctive shape of their fluted cola bottles. The Swiss chocolate brand Toblerone owns a trademark on the distinctive “peaks and valleys” triangular configuration of their iconic chocolate bars.
What’s required when trying to protect the shape of goods or packaging as a trademark? First, the shape can’t be functional (if you want to protect something functional, you need a patent). If the shape is part of the function of the goods, then it’s not registrable as a trademark. LEGO bricks, for example, are not registrable as a trademark (even though everyone, when presented with the shape, would say, “That looks like a LEGO…”) because the shape of the brick is inherent to the function of the brick itself. If it’s to interlock with other bricks, then it needs to be that shape. If LEGO were granted a trademark registration for the shape, it would prevent other companies from manufacturing similar items, which are a sort of “generic” brick shape.
If the shape of the design adds some value to the goods, it’s also not registrable as a trademark. Trademarks are intended to protect certain aesthetic, artistic elements of how the goods are presented, not to prevent others from making a design that would improve upon the goods and add value because it makes the goods more functional. For example, Panerai watches owns a trademark for the distinctive shape of the piece of the watch case that covers the crown and protects the winding stem. Other watch companies are free to make such a protective piece, but not in that shape.
If the shape is an inherent part of the goods, it’s also not registrable as a trademark. If you make a booster seat for children, for example, there are only so many ways to design such a product. You can’t protect the functional design of the booster seat, but if you added a decorative element to the seat, that decorative element would be registrable. A manufacturer can certainly add a logo or word trademark to the goods, thus identifying the source of the goods, which is the whole point of trademark law.
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Contact Dallas, Texas trademark attorney Angela Langlotz today to get started on a trademark application for your valuable brand.