Trademarking for Features
There’s nothing more exciting than getting a new idea. Maybe it’s an idea for a new restaurant that will be the talk of the town or a new children’s toy that will be on every child’s list this Christmas. Maybe it’s something else entirely. Something so out of the box you can’t believe you even thought of it. You’re filled with energy and passion and can’t wait to share your idea with the world.
What’s the catch, right?
Well, you need to make sure this new, exciting idea of yours is protected. You want to protect every part of it you can. The best way to do so is through trademarking.
Though the most common trademarks are for words, symbols, or phrases, they aren’t limited to those categories. Physical features of a product or service can also be trademarked. These features are trademarked as something called “Trade Dress.”
What is Trade Dress?
Trade dress is a type of intellectual property that involves the commercial features of a product or service. Since these features are used to distinguish something, trade dress can be trademarked just as words, symbols, or phrases can be.
In the case of trade dress for a product, it can be the features of the product itself – like product design – or the product’s packaging features. Trade dress can also be something like the décor of a business or even the building’s architecture where the company is located.
Despite having its own term and slightly different rules from a standard trademark, a trademark for a word, symbol, or phrase is treated the same in the eye of the law as a trademark for trade dress is. That’s why it’s important to understand trade dress and how you can protect your product’s or service’s unique features.
Lanham Act
When looking into trademarking, it’s always good to have a basic understanding of where the protections you’re seeking come from. The Lanham Act, also known as the Trademark Act of 1946, is the federal statute that provides these protections. The act allows for a national system to exist for trademark registration and gives the owners of trademarks protection.
The Lanham Act defines a trademark as a mark used in commerce or registered with a bona fide intent to use it in commerce. The act protects the person or company who uses the trademark first commercially.
Under the Lanham Act, trade dress is protected as a trademark. It allows trade dress to be registered as any other trademark would be with the U.S. Patent and Trademark Office (USPTO).
Though the Lanham Act provides protection for trademarks that aren’t registered, registering trademarks provides the owner with additional protection. Whether you decide to register your trade dress or not, there are still requirements that need to be met for your trade dress to be considered worthy of protection in the eye of the Lanham Act.
Requirements for Trade Dress Protection:
An application to register a trade dress as a trademark tends to include the same content required for a regular trademark application, but the requirements are slightly different.
There are two primary requirements for a product or service’s features to be considered trade dress.
The first requirement is that the trade dress needs to be distinctive. This means that the feature or features being trademarked need to be unusual and memorable in a way that separates the product or service from others.
The second requirement is that the trade dress needs to be nonfunctional. An example of functionality getting in the way of trade dress protections is a company making beach towels that were in a circular shape. They argued that their shape was distinctive, but because the shape also provided functionality, they couldn’t receive the protections they were hoping for.
Examples of Trade Dress
The concept of trade dress and what counts as a protected feature can sometimes be a little murky. It helps to have real-world examples to understand better what can be protected.
Trade Dress by Color
Owen’s-Corning’s fiberglass insulation products use a distinctive pink for their products that they have been able to trademark as trade dress. They were able to do this because the pink is distinctive and doesn’t provide any actual functionality to the insulation.
Trade Dress by Sound
Have you ever heard a sound or jingle and immediately known what it goes to? How about the chime for NBC? This three-tone little tune is an example of a registered and protected trade dress.
Trade Dress by Shape
Probably one of the most famous examples of a shape being trademarked is the distinctive contoured and ribbed glass bottle used for Coca-Cola.
Trade Dress by Smell
The hardest thing to trademark is a scent, but there is a small group of companies that have registered a smell with the USPTO. One of these companies is Hasbro, which trademarked the distinctive, nostalgic scent of Play-Doh.
Trade Dress by Décor
Even a business’s decorations, from their booths to their menus to the uniforms of their workers, can be trademarked as trade dress. This is the case with the distinctive style of the Hard Rock Cafe.
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