Packaging is the ultimate vehicle for design: industrial, graphic, and typographic design are all put to the test to create an impression so meaningful that it converts currency into consumerism. This ...
Discussions about trademarks often raise more questions than they answer. For instance, the strength or significance of a mark frequently is unknown until it comes down to litigation between two competitors. Nevertheless, choosing the right mark, name, or logo in the first place may go a long way in establishing a brand, protecting a brand’s investment, and discouraging copycats and weakening later on.
Package Design spoke with trademark lawyer David M. Perry, partner at the Blank Rome LLP law firm (www.blankrome.com) in Philadelphia to learn about the current trademark climate. He shares his advice on trademark strategy and brand development, and offers counsel on avoiding common mistakes.
PD: What’s the simplest way to describe the function or purpose of a service mark or trademark?
David M. Perry: A service mark or trademark is any word, symbol, or device used to identify one’s goods or services and distinguish them from the goods and services of others. This can include words, icons, shapes, and even smells and sounds, among other indicators. One important exception is that trademark protection does not extend to features that are primarily functional—by and large, patents protect the functional aspects of a device, product, or package. As a rule, brand owners should choose marks that are distinctive, appropriate, and easy to register. Of course, that’s easier said than done.
How should a design agency respond when a client says: “I want something trademarkable”?
When speaking of packaging, there’s a significant distinction in U.S. law between the protection of a name or logo and the protection of a shape. The latter is usually a challenge. When it comes to a shape, color, sound, or even motion, some marks can be protected if they’re legally distinctive. The law makes clear that some elements require an extra layer of meaning or distinctiveness, in which case you’re going to be probing the client about the extent of their use and the kind of market presence they have.
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