Remember the days when the color depletion theory justified courts and the U.S. Trademark Office in denying any federal trademark protection for single colors, per se?

This was the status of the trademark law for many decades, at least until the Court of the Appeals for the Federal Circuit disagreed in 1985 (In re Owens Corning Fiberglas Corporation) (pink colored insulation) and the U.S. Supreme Court in 1995 (Qualitex Co. v. Jacobsen Products Co.) (shade of green/gold colored dry cleaning press pads) settled the conflict among the circuits in favor of the Federal Circuit’s ruling in Owens Corning.

The notion that occasional problems don’t justify per se prohibitions was the prevailing argument.

Dilbert’s comic strip from a couple of days ago, appears to advocate a revival of a similar depletion theory, but this time, for product shape and product configuration trademarks, not single colors.

Mr. Dilbert, please keep in mind that Qualitex requires a showing of acquired distinctiveness or secondary meaning to obtain exclusive rights in a product shape or configuration trademark, and as TTABlogger John Welch has succinctly concluded:

"It’s danged hard to get a product configuration past the TTAB. There have been a few during the life of this blog (the Walther "James Bond" pistol, the Cartier watch, and the Baldwin key head come to mind), but not many." [link added]

What do you think, are product configuration trademarks out of control, as Dilbert suggests?