BitLaw

Letters and words

A word or other groupings of letters is the most common type of mark. Examples include:

• APPLE
• GOOGLE
• NETFLIX
• IBM
• NBC

Logos

Logos are probably the next most common form of mark. A logo can be described as a design which becomes a mark when used in close association with the goods or services being marketed. The logo mark does not need to be elaborate; it need only distinguish goods and services sold under the mark from other goods and services. Examples of logo marks are:

McDonald's double arches

NBC's peacock style design

Apple Computer's Apple

Pictures or drawings

Pictures or drawings of a character or scene are often used as trademarks or service marks.

Puma's puma

Corning's Pink Panther

Duke, the Java Mascot

Android

Combination

Or a trademark might be a combination of letters and a design, such as:

Slogans

Slogans from advertising campaigns are also used as trademarks. Example slogans which have strong trademark rights attached to them are:

Color marks

The color of an item can also function as a trademark. The Supreme Court held in the 1995 case of Qualitex Co. v. Jacobson Products Co., 115 S.Ct. 1300 (1995) that the green-gold color of a dry cleaning press pad can function as a trademark. Before this decision, the argument was often made that color alone could not be considered a trademark, since granting trademark status to colors would soon lead to the depletion of the number of colors available for an object. The Court in Qualitex rejected arguments based on this depletion theory, reasoning that alternative colors would usually be available for competitors. In those cases where alternative colors were not available, courts could deny trademark protection in those circumstances where color depletion may actually occur.

In order for a color to be considered a trademark, the owner must show that secondary meaning has been developed for the color. In addition, a color cannot be a trademark if the color is functional in nature. For example, one court has held that the color black serves a functional purpose when used on outboard boat motors, since the color black matches all other boat colors and also makes the motor appear smaller. A second court, however, has stated that it is possible for a color to function as a trademark even if the color contributes to the utilitarian or aesthetic function of a product. A second example of a color mark is the color pink for Owens-Corning's fiberglass insulation.

Product shape

A product or container shape can also serve a source identifying function and therefore can be an enforceable trademark. A product or container shape may also be subject to a design patent (see the BitLaw discussion of design patents to see an analysis of the similarities and differences between design patents and trademark protection for product shapes). Historically, trademark protection was not granted to product shapes until the consuming public recognized the shape as indicating the source of the product. In other words, the product shape was required to obtained secondary meaning. However, recent court decisions may mean that an inherently distinctive product shape can be a protectable trademark even before secondary meaning is obtained. Examples of product shapes and configurations that likely enjoy trademark status include:

The Coca Cola bottle

The Toblerone Candybar

Sound marks

A sound can also be a trademark or a service mark. The three tone chime of NBC has been registered as a service mark. Sound trademarks recently were in the news when Harley-Davidson announced that it was attempting to register the exhaust sound of a Harley- Davidson motorcycle with the U.S. Patent and Trademark Office (USPTO). Harley-Davidson was reacting to moves by competitors to duplicate the Harley sound in competing motorcycles. Hearings in front of the USPTO have been scheduled to determine whether Harley-Davidson can register the sound.