On a recent trip to the Washington, D.C. area, I had the opportunity to stay at the Bethesda North Marriott Hotel & Conference Center, and I’ll have to say, as a trademark type, it was difficult to avoid being drawn to their unique and engaging bath soap and packaging:
In my experience, most bath soap bars and cartons on display in hotel guest rooms are pretty basic, nothing special, not much to talk about, much less write about. But, with THANN, Marriott appears to have found an imaginative partner in the bathroom amenities category:
“Marriott Hotels is on a journey to reimagine the future of travel and THANN amenities will elevate the guest experience at our hotels,” said Matthew Carroll, vice president, Brand Management, Marriott Hotels. “Our research shows that customers rank bathroom amenities among the top five most important influences on their overall guest room experience. Partnering with THANN will also enable Marriott to meet another customer desire for the introduction of new amenities on a regular basis. As THANN’s products continue to become available in North America, we are excited to be among the first to offer the brand’s products to our guests.”
THANN’s website indicates that its “unique products and imaginative packaging have won the prestigious Thailand Prime Minister’s Export Award, Japan’s G-Mark Award for excellence in industrial design, and the Hong Kong Design Center’s coveted Design for Asia Grand Award.”
Although the shape of the soap carton and package is pretty clearly attention-getting from the photo above, the distinctiveness of the soap bar shape itself is not captured in the above photo appearing on Marriott’s website, so here is some of my handiwork to help illustrate the point:
Our loyal DuetsBlog readers will fully appreciate that the Supreme Court has determined product packaging and containers on the one hand, deserve different legal treatment from product shape and configuration on the other hand:
“Recall that back in March 2000 in Wal-Mart Stores, the Supreme Court drew a black and white line between non-traditional trademark protection for product configurations (which now must have proof of acquired distinctiveness or secondary meaning to enjoy protection or registration) and non-traditional trademark protection for product packaging or trade dress (which may forego proof of acquired distinctiveness so long as the claimed non-traditional trademark is sufficiently unique to qualify as being inherently distinctive).”
Applying Supreme Court teaching to the THANN example, the soap carton has the potential for immediate protection as inherently distinctive product packaging, while the soap bar shape, no matter how unique, can never obtain immediate protection because it can never be considered inherently distinctive, proof of acquired distinctiveness is necessary before any exclusive rights can attach.
From where I’m sitting, the shape and configuration of the soap bar is at least as distinctive and source-identifying as the carton and package, but no doubt, the divined black/white rule provides clarity, certainty, and predictability on the issue.
I’m doing my level best to not get all lathered up on this one, but where was the Supreme Court when we needed it to deliver a similar black/white rule on issue preclusion in the B&B Hardware decision, with the kind of the clarity sought by INTA’s Amicus Brief?
Marketing types: Do you consider the shape of the bar soap to be more distinctive than the soap carton package?
Trademark types: Why did the Supreme Court deliver a black/white rule in Wal-Mart, but not in B&B Hardware?
In closing, maybe one day, THANN will more than imagine federally-registered trademark protection for both the shape of the soap bar and the package, since it only has sought registered protection for the THANN word and logo mark in the U.S., at least to date.