TMEP 1202.02(f)(ii): Product Packaging

This is the October 2015 Edition of the TMEP

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1202.02(f)(ii)    Product Packaging

The three-dimensional packaging or wrapping in which a product is sold also constitutes trade dress. While a product-design drawing typically depicts the shape or configuration of the product listed in the identification of goods, product packaging can be in any shape or form that serves as packaging for the listed goods. For example, if the drawing depicts a three-dimensional computer mouse, the description of the mark states that the trade dress is product packaging, and the identified goods are “cosmetics and hair brushes,” it is conceivable that the goods could be sold in packaging shaped like a computer mouse, and it does not mean that the goods themselves must be in the shape of a computer mouse. However, where the drawing depicts a three-dimensional computer mouse, the description of the mark states that the trade dress is product design or configuration, the identified goods are “cosmetics and hair brushes,” and the goods are not in the shape of a computer mouse, this presents a potential issue of “inconsistent goods.” See TMEP §1202.02(f)(i).

In most cases, the specific three-dimensional product packaging depicted on the drawing houses the product being sold (e.g., the drawing shows a three-dimensional bottle and the goods are “wine”). However, in rare cases, the identification of goods may include products (or services) that appear, on their face, to be inconsistent with the type of packaging design depicted on the drawing (e.g., a drawing showing a three-dimensional bottle design for “automobiles” or other “inconsistent goods” that are not likely to be sold in bottles). In such cases, where the drawing, the description of the mark, the specimen, or any other evidence of record does not support that the three-dimensional product packaging depicted on the drawing would serve as packaging for the goods, the applicant must provide sufficient evidence that the proposed trade dress serves as the actual shape of the packaging for the inconsistent goods or has a “consistent overall look” across all the goods listed in the identification. Cf. Rose Art Indus., Inc. v. Swanson, 235 F.3d 165, 173, 57 USPQ2d 1125, 1131 (3d Cir. 2000) (quoting Rose Art Indus., Inc. v. Raymond Geddes & Co., 31 F. Supp. 2d 367, 373, 49 USPQ2d 1180, 1184 (D.N.J. 1998), rev’d on other grounds sub nom. Rose Art Indus., Inc. v. Swanson, 235 F.3d 165, 57 USPQ2d 1125 (3d Cir. 2000)) (stating that trade dress protection for a series or line of products or packaging depends on them having a consistent overall look and remanding for proper application of the standard); The Walt Disney Co. v. GoodTimes Home Video Corp., 830 F. Supp. 762, 766, 29 USPQ2d 1047, 1050 (S.D.N.Y. 1993) (setting forth the “consistent overall look” standard and applying it to a claim of protection for a line of packaging trade dress). In this situation, the same analysis, refusal, and requirements that apply to product design also apply to product packaging. See TMEP §1202.02(f)(i).