A trademark is phrase, symbol or design element that identifies the brand of a product or service. Unlike a copyright or patent, trademark protection takes effect as soon as the mark is first used in commerce, even without registration. Non-traditional trademarks include shapes, such as the trademark for the three-dimensional iPod shape granted to Apple by the U.S. Patent and Trademark Office in January 2012.
Give public notice that you have ownership rights to your trademark by displaying “TM” in superscript whenever the mark appears in print. Use of this symbol indicates that the trademark is not registered with a regulatory agency, such as the United States Patent and Trademark Office. If your mark is registered, however, you may use the symbol that looks like the letter “R” inside of a circle.
Use the trademark correctly. Trademark protection does not expire as long as the mark is not abandoned or allowed to fall into the public domain. Your trademark shape becomes at risk of the latter if it becomes associated with the actual product or service rather than the brand. This hazard most often applies to brand names that were once trademark protected but that later became free for public use, such as “aspirin.” Features such as shapes, referred to in the industry as “trade dress,” are protected as long as they are used to distinguish one brand from another. But if the shape is promoted to give the product a functional advantage, like ease of stacking or handling, then the shape may be too generic to be considered a trademark.
File an application to register your shape trademark electronically by using the Trademark Electronic Application System, or TEAS, on the website of the United States Patent and Trademark Office. Note that you will be required to provide a specimen that illustrates how the shape is used in business or trade. If you have not yet begun to use the shape, it will be necessary to select Section 1(b) “intent to use” basis on the application form, which requires an additional fee.
Consider whether your shape would benefit from the dual protection offered by trademark registration and a design patent. A patent protecting product design prevents other manufacturers from producing products or containers of a similar shape would likely create confusion in terms of identifying the brand or manufacturer. A guide to filing a design patent application is available for viewing online at the USPTO website.