Clients are often surprised by the various types of things that can be protected under trademark law. From color combinations to product names, there are many different things that can be protected with a trademark.
Here is an interesting filing that shows the depth and limits of trademark protection, specifically when it comes to the shape of products. One April 25, 2019, Apple Airpods filed a trademark registration claiming exclusive rights to the configuration of their product. They are essentially saying that the buds as they appear in their case are only associated with Apple. Recently, the examining attorney who was assigned to the Apple Airpods application denied it on the ground that it is merely functional and is, therefore, not something that can registered. 7/6/2020 Update: Since this video was recorded, Apple has argued against the refusal and the USPTO has since issued a registration for the Apple Airpods trade dress.
In general, the shape of a product can be protected under trademark law, but only if it is clearly recognizable to consumers as being from one specific source. In this case, the source would be Apple. However, there are some limits to that protection. The product can’t be functional, meaning that it can’t be a configuration that would give Apple a functional advantage over competitors (through holding, charging, displaying, etc.).
Apple’s goal in making this filing is likely to stop the flood of copycats that are in the marketplace. In order to own a configuration like this, they will need to show that the shape of the Airpods is not functional and, that by having exclusive rights, they wouldn’t gain any functional advantage over their competitors. Additionally, if Apple has patents on any of these parts, then that might be evidence that this is functional, as these are parts that Apple considers to be an aspect of the usefulness of the device.
What can you trademark in your own business?
Especially with Amazon and online marketplaces, creative product packaging often attracts lookalikes and knockoffs. By not protecting these unique characteristics, you are leaving rights on the table. You should consider assessing all of your company’s trademarks, including logos, color combinations, product packaging, and more. On the other hand, if you are creating a new product, it’s important to know when you are being inspired by another company, and when you might be violating trademark rights.
The scope of what can be protected with a trademark can be overwhelming, but it’s important to make sure you are taking full advantage of possible benefits. If you have any further questions or would like to discuss registering a trademark, please reach out to us.