Three-dimensional (3D) trademarks are a specific and unique subset of a trade dress. Conventionally, a trade dress included packaging and labeling, however today, it also involves a complete commercial image of a product. This complete commercial image may comprise of numerous features such as shape, color, size, texture, graphics or even particular sales techniques, among others. The two different categories of a trade dress are:

1. Product packaging trade dress – consists of the complete image which is created by the actual packaging in which the product is marketed.
2. Product configuration trade dress – consists of the design or specific product features.

Further, a trademark color image in 3D form (also known as a three-dimensional color trademark) is a combination of a 3D mark and a color mark. It is important to note that a trademark owner needs to show that the trademark color has attained considerable distinctiveness, and the color suggests the source of the goods to which it is applied.

Registration of Product Configuration as Trademarks

A product configuration may be registered as a trademark if it serves to identify its source and is non-functional. One should be able to list and define the elements of the said product. This satisfies the requirement that the public be given adequate notice as to what shapes are federally protected.

To attain protection for a product configuration, the product design should be created in such a way that it meets most of the above-mentioned requirements. The product configuration should be fundamentally distinctive, and the shape should be non-functional.

Impact Story

• Project Brief

Recently, a client reached out to Sagacious IP with a project, looking to pursue a US trademark registration on a statute in three-dimensional form. The statue was of an animated person, similar to a man wearing a muffler. The client had to submit a 3D line drawing of the statue, which they assumed would be along the lines of a perspective view for a design patent application. Therefore, the client wanted Sagacious IP to create a front view of the statue based on the statue’s picture that was shared for the project.

• The Solution

Sagacious IP’s team developed an in-depth understanding of the project using the statue images they received as reference. These had to be converted into a single three-dimensional trade drawing. As requested, the team created a front view drawing of the statue by working closely with the client and capturing the necessary details to include in the 3D mark. Throughout the duration of the project, the team maintained effective communication to reaffirm that the project was going as expected.

• The Impact

The client was pleased with Sagacious IP’s approach and the final front little perspective view that was shared for review. Further, they also appreciated the fact that we communicated effectively without missing the project deadline.

Final Thoughts

In light of the above, we conclude that a good quality colored 3D marks can be more beneficial for a company as compared to a conventional 2D mark. For instance, in the project discussed above, an important factor that received the statue looks to determine distinctiveness is whether the shape is unique. When designing the product, the more unique the shape, the more likely that a consumer will identify it with the manufacturer. Further, the product advertising should highlight the product configuration in some way. Lastly, for a product shape to be nonfunctional, advertising should refer to the 3D shape, but not claim any functional benefits.

Sagacious IP offers expert trademark drawing services to its clients. The drawings are created keeping in mind the drawing rules of the concerned PTO. Visit our website to know more about our services.

-John Britto (Illustration) and the Editorial Team

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