By Design: Obtaining Acquired Distinctiveness For Unusual Trademarks

It is entirely possible to register trademarks for shapes and containers even though such marks are inherently incapable of distinguishing the specific goods from other brands. However, through extensive use, these types of marks may very well acquire distinctiveness and act as a unique source identifier to consumers.

For instance, roughly 100 years after it was first released, Chanel is seeking to register the shape of its No.5 fragrance bottle as a trademark in the U.S. – initially refused in a non-final Office action by the USPTO since "the mark consists of a nondistinctive configuration of packaging for the goods that is not registrable on the Principal Register without sufficient proof of acquired distinctiveness." The examiner also said that "the shape is a common or basic shape that is not unique or unusual in the fields of cosmetics, fragrances, perfumery, and Eau de parfum".