Most of our posts have focused on the trademark rights associated with particular words, but don’t forget to consider what your product looks like and how they are presented to customers. You can develop separate rights in the look of your product. Both the shape of a product and a product’s packaging can be protected and used to leverage your brand and build recognition with your customer base. This added visual can make a big difference when thinking about your brand strategy and whether your product will stand out loud. Research scientists are continually studying human judgment based on visual cues – whether talking about the trustworthiness of a political candidate, the desirability of a romantic mate, or other snap judgments people make based solely on looks or first impressions. Advertising and brand promotion likewise fall victim to snap judgments. The look of your product should be considered equally with its name as part of your overall branding strategy.
Product shape and packaging are generally referred to as your trade dress. Like trademarks comprised of words or logos, product trade dress can also be registered with the U.S. Patent and Trademark Office. To qualify for protection, you have to demonstrate that your trade dress is not functional and instead contributes aesthetic value. Further, if you want to develop rights in your product shape, then you must also demonstrate that your shape has “secondary meaning” such that consumers associate the shape with you as a source identifier.
There are a variety of ways brands develop rights in the look or feel of products separate and apart from the products’ brand names. For example, Coca-Cola owns a trademark registration for the shape of its Coke bottle. The images below demonstrate the Coke bottle design shown in line drawing form that appears on the trademark registration certificate (left) opposite an image of the finished product (right):
Gibson Guitar has a number of trademark registrations for different guitar designs, including the shapes of the guitars’ bodies and other individual components like headstocks. Here’s one:
Maker’s Mark owns a trademark registration for the distinctive wax dipped and dripped over its whisky bottles:
So, think about your look and whether it needs an overhaul. Are you a wallflower that blends in with the crowd of competitors, or do you wear bold patterns and stand out loud? Trade dress is another way to build customer loyalty and let them find you – especially for all those people who remember faces but are terrible with names.
On the flip side, if you are developing a new product, don’t assume it is OK to make your product look like the product of a competitor. Even if you call your product something entirely different, the competitor could have trade dress rights in the look of the product. Both Gibson Brands and Maker’s Mark have gone to court to challenge competitors using their trade dress on other products.
Finally, if you establish a distinctive trade dress, then educate your customers that you are claiming trademark rights in a particular look. You can place notices on your websites or marketing materials, or even put hints in your ads. You have probably seen this kind of advertising with instructions to “Look for the one with the …..” For years, AstraZeneca’s NEXIUM brand of acid reflux medication instructed you to “Look for the PURPLE PILL”. AstraZeneca now owns a trademark registration for the words “THE PURPLE PILL” in addition to the appearance of the pill in the color purple with gold bands:
While a rose by any other name may smell as sweet, how the rose looks determines whether you actually smell it.