Trademark Registration of Distinctive Trade Dress in USA
Traditionally registrable marks of trade included characters (letters, numerals), words, logos, pictures, symbols, device, or mixtures of these components – often termed as trade dress.
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New form of trademarks may include visible signs of colors, sounds, size, element positioning, shapes as well as non-visible signs of sound (audio music), smell (scents) and taste of a product or entity. It may also include a sales technique and graphics.
Even slogans can be trademarked; for examples ‘America runs on Dunkin’®’ and ‘It’s finger lickin’ good!®’ are registered trademarks for slogans. [RD]
In the famous Qualitex Co. v. Jacobson Products Co., the US Supreme Court judges decided that color of an entity can be trademarked separately along with other elements of trade dress such as logo, name.
Anyhow, color trademarking, sometimes can be self-restricting – it may be avoided. For example, the Coca-Cola company has not registered any specific color, so according to USPTO, it can use any color. [RD]
A specific date and location can also be examples of non-conventional trademarks. [RD]
However, the application may differ with intellectual property offices of different countries. A company can register a single color as a source identifier to distinctiveness; for example, red color is trademarked for knobs of kitchen appliances of Wolf brand. But any such application to trademark a single color will be rejected in China, India and some other Asian countries. [RD]
In UK and EU, a color can be trademarked only after acquiring some distinctiveness through use over time.
US Supreme Court has explained that trade dress includes “overall appearance” or “total image” of trademark. Therefore, it is always wise not to rely on trademarking of single element alone. Instead, it is good idea to include more elements such as color, graphic shapes, specific font styles, for unique identity and protection of a trademark. [RD]
International brand of energy drinks, Red Bull won a trademark case in Turkey from their competitor who wanted to register trademark logo in similar blue and silver color and who was also dealing in business of similar class of goods, eg. energy drinks. The TURKPATENT decided in favor of Red Bull. So, we can infer from this example that not only name, but logo and colors should also be unique for your new brand, for avoiding any problem in future.
To register a shape mark, it should not be generic shape, for example, you cannot register a candy shaped as fish because fish is generic shape. [RD]
With a new concept of metaverse and web3, it has become a real challenge for trademark agencies and relevant courts for determining trademark rights for the virtual products being sold on NFT marketplaces. For example, application of Bootleg Ventures LLC for BlockBar illustration mark in 2022 for non-fungible tokens (NFT) is still pending with USPTO and EUIPO until the writing of this article. [RD]
Multifarious types products and services can be trademarked. Large companies invest a lot of sums of money in trademarking their products.
Burger King even trademarked round paper container "FryPod" for fries that can be easily placed inside cup holders of vehicles.
World Wrestling Entertainment (WWE) registered a trademark for TV show “SmackDown” in May 2022. This way, the show can be broadcasted from several channels but having a trademarked single identity.
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