Three-Dimensional Trademarks
Three-dimensional trademarks include the shape of a product or its packaging. A shape that discerns the goods or services of one business from those of other businesses can be registered as a Shape Trademark.
Can You Register a Shape as a Trademark?
Trademarks are commonly known as names and logos. It may surprise you to learn that 3-dimensional product shapes (aka product configurations) may also be registered as trademarks. It’s an uphill battle, but it is possible to register a product design trademark if it serves a source indicating purpose and not any functional purposes.
Requirements for Product Design Trademark
To be registrable as a trademark, a product configuration must pass a two-part test:
- Part 1: Utility? (1) Does the product configuration or feature have utility? If not, then it may be registrable if it is inherently distinctive.
You can search all applied-for and registered trademarks free of charge by using the U.S. Patent and Trademark Office (USPTO)’s Trademark Electronic Search System (TESS). If your mark includes a design element, you will have to search it by using a design code.
For the features and traits of a 3-D shape to be eligible for trademark protection, they must meet specific standards. The traits protected under trademark must identify the origin of the brand’s product or service. Second, the traits must also be inherently distinctive.
A shape trademark is a mark consisting of, or extending to, a three-dimensional shape, including containers, packaging, the product itself, or its appearance. The term ‘extending to’ means that shape marks cover not only shapes per se but also shapes that contain other elements, such as word elements, figurative elements, or labels.
There are two requirements that must be met for a product design to be registerable as a trademark. Must be non-functional. First, the shape can’t be functional. If you want to protect something functional, you need a patent.
Companies can register the shape and design of their product as a trademark just like they can register their names and logos, but there are requirements to be met. A product design trademark which seeks to protect the shape of a product may also be known as “trade dress.”