Rarely do product configuration trademark applications survive
TTAB scrutiny. Two major hurdles to registration stand in the way:
the absolute bar of Section 2(e)(5) functionality and the
requirement of acquired distinctiveness for product configuration
trade dress. In 2004, I wrote an article reviewing these issues,
entitled "Trade Dress and the TTAB: If Functionality
Don't Get You, Nondistinctiveness Will." But
putting aside the legal requirements for registration, let's
look at the practical side.
The applicant who seeks to register a product configuration or a
product feature as a trademark is often in the following position:
it has a commercially successful product but doesn't have
patent protection - whether because it never sought patent
protection or was denied patent protection, or because the patent
protection it obtained has expired. Trademark registration, with
its potentially unlimited lifespan, seems an attractive possible
avenue for filling this
