Ornamental marks are non-functional design elements or decorative features added to a product or its packaging, which do not serve a practical purpose but are intended to enhance the aesthetic appeal or visual identity. These marks are distinct from trademarks, which are used to identify the source of goods or services. In the context of bars to trademark, ornamental marks are an important consideration as they may not be eligible for trademark protection due to their purely decorative nature, lacking the necessary distinctiveness to function as a source identifier.
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Ornamental marks are not considered source identifiers and therefore do not function as trademarks, as they are primarily intended to enhance the aesthetic appeal of a product rather than indicate its commercial origin.
The Trademark Trial and Appeal Board (TTAB) and courts have consistently held that ornamental designs that are merely decorative or aesthetically pleasing cannot be registered as trademarks.
To determine whether a mark is ornamental or functional, the key consideration is whether the primary purpose of the feature is to identify the source of the goods or to serve a utilitarian purpose.
Factors that may indicate a mark is ornamental include its placement on the product, the manner in which it is used, and whether it is a common decorative feature in the relevant industry.
Ornamental marks can sometimes be registered as part of a product's trade dress if they contribute to the overall distinctive appearance of the product and are not functional.
Review Questions
Explain the distinction between ornamental marks and trademarks, and why ornamental marks may not be eligible for trademark protection.
Ornamental marks are non-functional design elements or decorative features added to a product or its packaging, primarily for aesthetic purposes, rather than to identify the source of the goods. In contrast, trademarks are used to identify the commercial origin of goods or services and must be distinctive. The key distinction is that ornamental marks lack the necessary source-identifying function to be eligible for trademark protection, as they are primarily intended to enhance the visual appeal of the product rather than indicate its commercial origin. The Trademark Trial and Appeal Board and courts have consistently held that purely ornamental or decorative features that do not serve as source identifiers cannot be registered as trademarks.
Describe the factors that courts and the Trademark Trial and Appeal Board consider when determining whether a mark is ornamental or functional.
To determine whether a mark is ornamental or functional, the primary consideration is the purpose of the feature. If the primary purpose is to enhance the aesthetic appeal of the product rather than to identify its source, the mark is likely to be considered ornamental. Factors that may indicate a mark is ornamental include its placement on the product, the manner in which it is used, and whether it is a common decorative feature in the relevant industry. Additionally, the Trademark Trial and Appeal Board and courts will examine whether the feature is essential to the use or purpose of the product, or affects its cost or quality, as these would be indicators of functionality rather than ornamentation.
Explain how ornamental marks can sometimes be protected as part of a product's trade dress, even if they are not eligible for standalone trademark protection.
While ornamental marks may not be eligible for trademark protection on their own, they can potentially be protected as part of a product's overall trade dress. Trade dress refers to the total image and appearance of a product, including its size, shape, color, texture, graphics, and design. If the ornamental mark contributes to the distinctive, non-functional overall appearance of the product, it may be eligible for trade dress protection. This allows the owner to prevent others from copying the distinctive, source-identifying elements of the product's design, even if the individual ornamental features are not themselves protectable as trademarks. The key is that the trade dress, as a whole, must be distinctive and non-functional to qualify for this type of protection.
Related terms
Functionality Doctrine: The principle that features essential to the use or purpose of a product, or that affect the cost or quality of the product, cannot be protected by trademark law and must remain in the public domain.
The degree to which a mark is capable of identifying and distinguishing the source of the goods or services, which is a key requirement for trademark protection.
The overall image and appearance of a product, including its size, shape, color, texture, graphics, and design, which can be protected as a form of trademark if it is distinctive and non-functional.