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Bringing Down the Bauhaus for Trademarks?

Posted in Advertising, Almost Advice, Articles, Branding, Loss of Rights, Marketing, Non-Traditional Trademarks, Product Configurations, Trademarks, TTAB, USPTO

We’ve been spilling a lot of digital ink lately on the topic of non-traditional trademark protection and how the functionality doctrine serves as an absolute bar for such protection.

As you know, for some time, we’ve been stressing the importance of close collaboration between trademark and marketing types when it comes to forming public communications about unique product design features, if there is to be any hope of owning those features as trademarks.

Let’s not forget the potential functionality “ticking time bombs” in public communications about Pepsi’s “grip-able” portion of its bottle design, or Lexus’ “spindle” front grille: “Its trapezoid-like shape assists the flow of air into the engine room.”

One of the important takeaways from our recent webinar entitled “Strategies for Owning Product Designs,” was spoken by legendary product design guru Bob Worrell of Worrell Design: “There is another adage in the design world. Advertising is the very expensive penalty you pay for poor design. I think if we listen to that adage, we’d talk less and let the product do its thing.” (quote at 1:22:31)

Bob further explained one of the Bauhaus principles of design, namely, “form follows function”. Obviously this is a dangerous principle when it comes to non-traditional trademark protection. Clearly, Hartmut Esslinger’s mindset of “form follows emotion” is a safer one to have in mind when one is selling or communicating about product design and product design features.

This topic isn’t going away any time soon, at the end of last year, we highlighted a number of product configuration trademark filings, and in early January of this year, we asked whether 2015 will be the year of functionality refusals at the USPTO for product configuration trademark applications. It appears, we may be off to a good (actually bad) start.

Just today, John Welch over at the TTABlog recommended some important reading on the subject of trademark functionality, and as you will recall, John shared some valuable insights on functionality last month.

So, I’ll ask the question a little differently today, will 2015 be the year of functionality refusals, or will it be the year we closely collaborate to bring down the Bauhaus when communicating about product design features?