-Wes Anderson, Attorney
Another for the file of newly-registered product configuration marks: acquired distinctiveness, sold by the gallon.
According to 2014 numbers released by the U.S. Department of Agriculture, Americans drink 37 percent less milk than they did in 1970. Whole milk consumption has plummeted by 78 percent during the same period. The dairy industry has spent countless millions on advertising, and don’t be surprised if you see the MILK LIFE campaign featured prominently in the upcoming Olympics (sadly, the “Got Milk” campaign was discontinued in 2014).
For its part, it looks as though HP Hood LLC decided to shake up the humble gallon-sized milk bottle, and it recently obtained a registration for the configuration shown below.
Named the “LIGHTBLOCK Bottle,” the design actually made its debut in 1997, and, as the name suggests, the primary function of the bottle is to block light “to protect against off flavors and vitamin depletion.” But Hood also made some changes to differentiate its design from the typical milk bottle, and filed an application for the configuration in June 2014.
The application identifies “Dairy products, namely, fluid milk” — I probably shouldn’t even ask if there are other types besides “fluid”? The mark description is also a doozy:
The mark consists of the three-dimensional configuration of the size and shape of a plastic jug-type one gallon container for milk products, having four vertical sides of equal width and a rounded, rather than pyramidal top. The vertical panels are proportionally taller than in commonly used one gallon milk containers. The overall dimensions of the container are approximately 6 1/4 inches wide by 6 1/4 inches deep by 10 inches high. The jug-handle of the container is placed at the middle of one side rather than at a corner. There are four horizontal ribs indented in the two side panels which are adjacent and perpendicular to the handle side. There is one vertical rib indented into each corner of the container where the vertical panels are joined. There are two horizontal ribs indented in the back panel below the handle.
It’s highly uncommon to see actual measurements of the product configuration within a mark description, as brand owners generally like to make subtle changes in their overall packaging while maintaining the distinctive features of the design. Given the standardized gallon size for the bottle, this may be less of a concern for Hood.
Thanks in part, perhaps, to a correctly-tailored mark description and a specific drawing (with prodigious use of the dotted lines to indicate what is not claimed as part of the trademark), Hood avoided a functionality refusal for the specific features identified in the mark.
The main objection for Hood to overcome was a non-distinctive trademark refusal, and Hood’s claim of over five years’ use of the mark was insufficient. Hood overcame this refusal with a simple, concise declaration containing sales figures (in the hundreds of millions of bottles). Hood also included a “comparison chart” showing the differences between its bottle design and its competitors — specifically, a “rounded top (not pyramidal),” a handle centered on the side, and “horizontal and vertical ribs.”
So, what do you think? Is it worth the cost of registration? Would this milk jug catch your eye in the dairy section?