Trademark Protection for Product Shapes and Containers

Copyright 2021

A trademark is a brand name. It may include any word, name, symbol and/or device that's used (or intended to be used) to identify and distinguish the goods and services of one seller or provider from those of others, and to indicate the source of the goods and services, according to the U.S. Patent and Trademark Office (USPTO). In some situations, trademarks may extend beyond company names and logos.

Shape of Product Packaging

U.S. law has long granted trademark protection to the shapes of products and containers. Perhaps the most famous example is the instantly recognizable Coca-Cola bottle, which is almost as important a trademark as the soft drink company's stylized name logo.

Important:Trademark protection for the product shapes and containers shouldn't be confused with the safeguards afforded by design patents. See "Design Patents vs. Trademark" at right.

In one high-profile case, actions taken by two well-known companies brought the concept of product shapes into the headlines.

 Zippo Manufacturing Co. announced that it received trademark protection for its cigarette lighters' distinctive rectangular shape in late 2002. The Pennsylvania manufacturer informed wholesalers and retailers that it intended to take action against merchants found selling lighters designed to mislead consumers by infringing on Zippo's trademarked shape.

The company contended that its authorized distributors and retailers have lost millions of dollars in profits over the years as a result of the sale of copycat products. It demanded that all infringing merchandise be removed from store shelves.

In another claim of trademark protection for a distinctively-shaped product, General Motors (GM) filed suit against Avanti, claiming that Avanti's Studebaker XUV infringed on the distinctive shape of GM's popular Hummer H2. GM argued that consumers would be confused by the similarity of the design of the two vehicles in violation of trademark law. Avanti responded that the design of the XUV was clearly distinct from that of the H2 and therefore caused no confusion among the buying public.

Secondary Meaning Standard

Traditionally, trademark protection is granted only to products or containers with a shape that's easily recognized by the public. In legal language, a trademark exists if the shape has developed a "secondary meaning." In other words, it's associated with the company of origin.

The cases highlighted above might seem to indicate that trademark protection exists only for well-known products or containers that have been around for an extended period of time. However, business owners should be aware that protection is becoming easier to obtain. Today, a distinctive shape may be seen as worthy of trademark protection after a short period of time on the market.

The implications of trademark law for container and product shapes affect businesses across all sectors of the economy. While manufacturers are protected against competitors copying of their products and containers' shapes, intellectual property lawyers warn that businesses must also be careful not to copy the design of a competitor's product. In addition to manufacturers, merchants can be held liable for significant damages for selling merchandise that infringes on another company's trademark.

Need Help?

A strong trademark identifies the source of your company's goods and services and distinguishes them from the goods and services of others. However, it's critical that your trademark is both federally registrable and legally protectable. The USPTO strongly encourages companies to hire an attorney who specializes in trademark law to guide them through the trademark application process and to navigate possible infringement issues.