Welcome to another edition of non-traditional trademarks in connection with package designs:

BillGoatChipBag

The Billy Goat Chip Company contends it owns exclusive rights in a protectable and distinctive trademark for the appearance of the above chip bag, minus any words or images — just the shape and configuration of the bag. (Reminds me of my

Launched a few months ago, it’s called the bowtie can, because it appears to emulate Budweiser’s well-known bowtie brand icon, but the formal description of the Anheuser-Busch beer can at the USPTO is a bit more clumsy and technical:

“The mark consists of packaging for the goods, namely, beverage package for the goods consisting

Coca-Cola settled on its famous contour bottle design almost 100 years ago, in 1916, after several years of trials with other far less distinctive shapes (at least under today’s standards):

Federal trademark registration data confirms the first use date to be July 8, 1916. The description of the contour bottle design mark in 1960 was:

Would you place this mouth wash bottle on your bathroom counter or hide it under the counter?

The answer to this question, it appears, can have a material impact on whether the shape and design of the bottle functions as a non-traditional trademark.

The Procter & Gamble Company created this elegant container design —

A couple of days ago, Brandweek featured an interview of Peter Clarke, CEO and founder of Product Ventures, a Fairfield, Connecticut design firm that has created packaging for Heinz, Folgers and Febreze, among other brands:

Brandweek: You believe that packaging has become simpler of late. Can you describe what you mean by that?

As you may recall from March of this year, we blogged about Kimberly-Clark’s novel intent-to-use trademark application for a "sensory, touch mark" in connection with disposable paper hand-towels. Other discussions of sensory, touch marks may be found here

In any event, the original description of the claimed Kimberly-Clark trademark was as follows: "The

Let’s revisit the topic of non-traditional “touch” trademarks today.

Of all the traditional five human senses (sight, hearing, taste, smell, and touch) and trademarks that can be perceived by one or more of those senses, touch, a/k/a tactile, a/k/a texture trademarks are just about as uncommon as any (taste, perhaps, being the least common). Indeed, back in 2006, Marty Schwimmer from The Trademark Blog correctly noted the dearth of recognized tactile marks. Moreover, despite a 2006 INTA Board of Directors’ Resolution supporting the protection of touch marks, few appear to have reached for or grabbed any such protection (putting aside Kimberly-Clark, already blogged about here).

As arguably one of the most intimate of the senses: ‘Touch is the first sense developed in the womb and the last sense used before death.” Given that and given other unique characteristics of “touch” among the senses, it is a bit surprising that touch marks haven’t been pursued more by marketers looking to create intimate, emotional connections with a brand: “Another distinction of the sense of touch is that it is identified with the real. You can’t believe your eyes, nor your ears, and taste is personal and subjective, but touch is proof.” By the way, since touch/tactile/texture marks are so uncommon, why can’t we agree on what to call them? For what its worth, my vote is to call them “touch” marks since that is the term that names the underlying basic human sense.

Anyway, with that background, as far as I can tell, the one industry that seems to show the most promise or, at least, interest in touch trademarks, is the alcoholic beverages industry, most particularly those companies that focus on selling distilled spirits or wine.

                          


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