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A December for Configuration Trademarks?

Posted in Articles, Branding, Food, Marketing, Non-Traditional Trademarks, Patents, Product Configurations, Sight, Trademarks, USPTO

USPTO Drawing

Every now and then it’s worth checking in at the USPTO to see what’s cooking in the world of non-traditional product configuration trademarks:

USPTO Specimen

As it turns out, the Big Green Egg is seeking to be more than a word mark — two days before Christmas, a federal trademark application was filed for the product shape described this way (in connection with barbecue smokers and grills): “The mark consists of a three dimensional oval configuration of a cooking vessel in the particular shade of green as shown.”

As we’ve discussed before, unique product shapes can be protected through design patents for a limited period of time, but if the product design is non-functional and distinctive, the power of trademark protection can last forever.

It appears there may be a year end rush at the USPTO by those seeking this forever kind of protection — as this December, it has attracted more than a few interesting product configuration trademark applicants beyond the egg shaped smoker.

For example, quite surprisingly, my daughter was able to identify this USPTO drawing as representing Ice Chips Candy (of Shark Tank fame):

According to the trademark application, claiming use since September 5, 2009: “The mark consists of the configuration of candy comprising irregularly shaped chips with multiple irregular facets and edges.”

But that’s not all, this month Smith & Wesson is seeking federal registration of its M&P pistol shape as a trademark too:

 

 

 

 

 

 

As you may recall, we have more than a little experience in successfully registering pistol shapes as trademarks. Remember James Bond’s guns of choice?

But, what do you make of the below shown claimed trademark, the “interwoven configuration of a cord affixed to a magazine pouch”? Since dotted lines aren’t part of the mark — they merely show position and placement and give context to the lined portions forming the claimed mark, it appears the laced cord configuration is all that is being claimed.

Do you suppose the Applicant’s specimen of use will trigger a functionality refusal? It surprisingly reads: “This unique pouch uses injection molded polymer sides, Cordura™ front and back, and shock cord lacing to lock just about any rifle magazine into place.” (emphasis added)

While the magazine might be secured by the lacing, the Applicant might as well have taken the Smith & Wesson pistol and pointed it at its foot, inviting the USPTO to issue a functionality refusal.

Will the “lacing to lock” advertising copy turn out to be another marketing pitfall example that ends badly?

So, dear readers, any predictions on which of these December filings, if any, will satisfy the USPTO that the claimed configuration functions as a distinctive trademark to indicate the source of the product?

Stay tuned, we’ll be following these and others in the coming year.