Product Configurations

— David Pabian, Attorney

I’m sure most of you have noticed those little egg shaped lip balms at the check out line in Target, Wal-Mart, Costco, and just about any other big store. The company that makes these, Evolution of Smooth or EOS, really hit on something big. Stores stock the product at check out

AnatomyofTMWarning

We wrote about the above trademark warning ad a few years back, and the claimed trademark owner likely recognizing vulnerability as to validity:

The idea generally is, let’s show and create a record that we are educating the public about our trademark rights and hopefully deterring misuses that otherwise might find their way

-Wes Anderson, Attorney

Another for the file of newly-registered product configuration marks: acquired distinctiveness, sold by the gallon.


LB_1_percent_lowfat_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 

We’ve written before on the subject of non-traditional trademarks and how look-for advertising can be quite helpful in not only educating consumers that a color or other design feature should stand out in their mind as performing the helpful role of a trademark, but in convincing the USPTO too.

Earlier this month the USPTO

–Dave Holt, Solicitor & Alex Watt, Partner, Browne Jacobson LLP

In the European Union, Coca-Cola has recently followed in the stumbling footsteps of fellow global super-brand Nestlé, falling at the final hurdle in its attempt to register the three-dimensional shape of its iconic ‘Coke bottle’ in classes 6, 21 and 32. You can read the

Yes and no are at opposite ends of the spectrum. North Pole, South Pole. Night and day. Win, loss. Black, white. Available, unavailable. Protectable, unprotectable. Infringing, non-infringing. They represent a binary proposition, like a traditional light switch with two settings: on and off.

My daughter loves the yes end of the spectrum; no, not

As a kid, I loved candy. But as an adult, who happens to be an intellectual property attorney, I still love candy. So you can bet your sweet tooth that I was feeling a sugar rush when I came across a pending application to register the claimed mark shown below:

Ice cream ring

The application was filed by

Loyal readers know how important look-for advertising can be in making the difference between establishing trademark ownership in the shape or configuration of a product, and being left with nothing but a goose egg (as opposed to a Big Green Egg). That’s not to say, the clunky words “look-for” are required, yet something equivalent

We have some razor sharp readers and guest bloggers. We’re deeply thankful and especially grateful when our readers and guest bloggers send us real life illustrations of marketing pitfalls we’ve identified, sliced and diced here on DuetsBlog. They provide more great teaching tools.

Hat tip to our own James Mahoney of Razor’s Edge Communications for