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Issued to Ford Motor Company on January 31, 2006 for "motor vehicles, namely, automobiles and structural parts therefor," under Section 2(f) of the Trademark Act.
"The mark consists of the configuration of a C-scoop on the side of an automotive vehicle."
Issued January 17, 2006 and assigned to Kraft Foods Holdings, Inc.
Admitting that design patent, trade dress and trademark protection are possible for fashion designs...Chia-Yu Chang of the Rebuttable blog tackles "Copyright protection for fashion designs."
The Germany law firm of Cohausz Dawidowicz Hannin & Partner maintains the Non-Traditional Trademark Archives.
In "The Death of Gorham Co. v. White: Killing It Softly with Markman," 86 Journal of the Patent and Trademark Office Society 792 (October 2004), Perry J. Saidman and Allison Singh lament the current demise of the Supreme Court's "ordinary observer" test for design patent infringement laid out two centuries ago in Gorham Co. v. White, 81 U.S. (14 Wall.) 511 (1871):
... if, in the eye of the ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an ordinary observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other. 81 U.S. at 528.
The Gorham test affords a design patent some scope of coverage beyond the precise design depicted in the patent. In Gorham, the Court found infringement of the patented Gorham design shown here on the left, by the two White designs shown on the right.
However, in 1995, the United States Court of Appeals for the Federal Circuit, in Elmer v. ICC Fabricating, Inc., 36 USPQ2d 1417 (Fed. Cir. 1995), ruled that the requirement of a Markman hearing to interpret the meaning of a patent claim is applicable to design patents (even though a design patent contains a single claim in standard language that simply refers to the design shown, without any elaboration). [Elmer relied on the CAFC's Markman decision of 1995, affirmed by the Supreme Court in 1996].
Thus courts must now verbalize the invention in a design patent, and then compare that verbalization with a description of the accused design. The authors assert that this approach has resulted in a disregard for Gorham's ordinary observer approach and a narrowing of protection for design patents. Once the patented design is reduced to words, differences from the accused design become magnified. As an example, the authors cite OddzOn Prods., Inc. v. Just Toys, Inc., 43 USPQ2d 1641 (Fed Cir. 1997), in which the design on the right (for a toy football) was found not to infringe the patented design on the left.
According to Saidman and Singh, application of the Markman requirement to design patents was a fundamental error that has "mortally wounded" the Gorham test. They urge that "it is time to acknowledge that a design patent is fundamentally different from a utility patent, and finally relieve design patent owners and courts from the stranglehold of Markman."
Having litigated both utility and design patents myself, I think the authors are spot on.
There are two major hurdles to registration of product configuration trade dress at the USPTO: functionality and distinctiveness. In the latest Trademark Reporter, Karen Feisthamel, Amy Kelly, and Johanna Sistek provide helfpul advice on how to approach those hurdles, and maybe even clear them. "Trade Dress 101: Best Practices for the Registration of Product Configuration Trade Dress with the USPTO," 95 Trademark Reporter 1374 (November-December 2005).
Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, (2000)
For more discussion of this article and of the topic in general, go to this posting at the TTABlog.
[The TMR article is Copyright 2005 the International Trademark Association and is reprinted, with permission, from the Trademark Reporter, 95 TMR 1374 (November-December 2005).]
Retro gas station designs.
Deutsche SiSi Werke, distributor of the CAPRI SUN stand up juice pouch, fails to obtain three-dimensional trademark protection, as EU Court of Justice, First Chamber, upholds Court of First Instance holding that stand-up juice pouch lacks inherent distinctiveness. Deutsche SiSi Werke v. OHIM.
The inspiration for the Shape Blog is book named Fab by MIT Professor Neil Gershenfeld.
FAB discusses Professor Gershenfeld's vision of 'Personal Fabrication' (in the professor's words, elaborated here.)
". . . a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme.'
