The Shape of Things to Come
The shape of your next burger may be protected by a trademark registration.
Configuration trademarks are not easy to get. So Bubba Foods should rejoice that the USPTO approved its trademark application to register the unusual shape of the Bubba Burger. To show the USPTO that the shape could be registered as a trademark, Bubba Foods presented evidence that it was more costly and less efficient to use the unusual shape so the shape was not functional. The company wrote, "Producing hamburgers utilizing the 'Bubba Burger' design mark requires applicant to fabricate an expensive custom mold and maintain same rather than using an off-the-shelf standard round mold." Bubba Foods also had to prove that the shape acquired secondary meaning, i.e. over the 25 years of its use, customers connect the shape to the Bubba Burger product. Bubba Foods used its millions of dollars in sales and its advertising to show that customers identify the shape with the product. The application will now be published for opposition.
WHY YOU SHOULD KNOW THIS. Configuration trademarks are a species of trade dress. Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress is not inherently distinctive. That’s why Bubba Foods had to prove 2 things. First, that the design was unusual and memorable and conceptually separable from the product. Second, the design served as a designator of origin of the product.