The U.S. Supreme Court recently considered whether a patented product feature
could be protected as a trademark after the patent expired.
The case, Traffix Devices, Inc. v. Marketing Displays, Inc., involved a
unique product feature that was designed to keep outdoor signs upright in windy
weather. The sign company sought and obtained patent protection. After the
patent expired, the sign company claimed that the design of the outdoor sign was
so unique that it served to identify the source of the sign - in other words,
that the design acted as a trademark, in the same way that the word KODAK and
the yellow and black film box serve as trademarks for the Eastman Kodak Company,
or the distinctive white star on the cap of a pen, serves as a trademark for the
pen manufacturer Mont Blanc.
The sign company's claim required the Court to reconcile the competing
purposes of the patent and trademark statutes. Patents are intended to protect
inventions; in exchange for disclosing an invention to the public, an inventor
is granted a legal monopoly for a limited period of time (today, 20 years from
the date that the application is filed). This time limit on the monopoly
represents a fundamental policy of the patent law. Once the patent has expired,
the invention is in the public domain for anyone to use.
Trademarks, on the other hand, are protected because they inform consumers
about the source and quality of goods and services. If a consumer sees the mark
L.A. GEAR on a pair of shoes, or NATIONAL GEOGRAPHIC on a magazine, or a flying
red horse along with the word MOBIL at a gas station, they know what to expect.
Trademarks can be protected forever, and, indeed, many well-known trademarks
have been around for more than 100 years. A trademark does not prevent a
competitor from selling a similar or identical product, however; they simply
must do so under a different name.
Packaging, or "trade dress" can also identify a product's source,
and thus can be a trademark. The words "Coca-Cola" do not have to be
visible for us to recognize a Coke bottle, and even the most casual photographer
knows that film in yellow and black boxes comes from Kodak and that film in
green packaging comes from Fuji.
Sometimes, even the product itself or a feature of the product can be
classified as trade dress and serve to identify the source of the product. The
triangular shaped Toblerone candy bar and the pink insulation from
Owens-Corning, for instance, are two examples.