Non-Traditional Trademarks Chapter uri icon


  • Over the last sixty years, courts and the USPTO have engaged in an ill-advised expansion of trademark subject matter. Where once only words or emblems attached to a product could serve as a trademark, today a product’s design or packaging itself may receive such protection. This expansion was and is a mistake. While there may be rare cases where a product’s design or packaging conveys brand-specific information and could receive protection without impairing competitor’s ability to offer substitutes, such cases are the exception and not the rule. By recognizing trade dress protection within the trademark law framework, courts and the USPTO have made the exception into the rule. Trade dress protection today has become an anticompetitive weapon that forecloses competition with no redeeming benefits. Courts and the USPTO should therefore correct their mistake and deny trade dress substantive protection under the Lanham Act, as Congress intended.

author list (cited authors)

  • Lunney, G. S.

Book Title

  • The Protection of Non-Traditional Trademarks

publication date

  • January 1, 2018 11:11 AM