Trademarking Product Shapes and Designs: What Are Your Rights?

I’m a trademark attorney based in Westminster, California, and today I want to talk to you about something you might not think about very often: trademarking product shapes and designs.

Most people know that you can trademark a business name or a logo. But did you know that you might also be able to trademark the shape of a product or the way it looks? It’s true! And if you’re a business owner, inventor, or designer, this could be really important for protecting what you’ve worked so hard to create.

Let me explain what this means in a way that’s easy to understand.

What Is a Trademark?

First, let’s talk about what a trademark is. A trademark is something that shows people who made or sold a product. It’s a way of telling one brand apart from another. Think of the golden arches of McDonald's or the Nike swoosh. Those are trademarks.

A trademark can be:

• A name (like “Coca-Cola”)

• A logo (like Apple’s apple)

• A slogan (like “Just Do It”)

• Even a sound (like the MGM lion’s roar)

But here’s the cool part — a product’s shape or design can also be a trademark, in some cases.

What Is “Trade Dress”?

When we talk about the shape or look of a product, we call that trade dress. Trade dress is a special kind of trademark that protects how a product or its packaging looks — not just the name or logo.

Here are some examples:

• The unique shape of a Coca-Cola bottle

• The design of a Hershey’s Kiss chocolate

• The red sole of a Christian Louboutin high heel

These shapes and designs are so well-known that people recognize them without even seeing a name or logo. That’s when trade dress protection can come in.

Why Is Trade Dress Important?

Let’s say you make a product with a special shape — maybe a water bottle that curves in a cool way that no one else uses. Over time, people might start recognizing that shape and connecting it with your brand.

Now imagine a bigger company copies your shape and sells their own version. Customers might get confused and think the copied bottle is yours.

That’s where trade dress comes in. If you have a trademark for your product’s design, you can stop others from using it.

How Do You Trademark a Product Shape?

Now, here’s the big question: How do you trademark a product shape or design?

It’s not always easy, but it is possible. There are three main things you need to prove:

1. The design is non-functional.
   This means the shape or design isn’t just useful — it’s also special and unique in how it looks. For example, if a certain shape helps the product work better, you probably can’t trademark it. Trade dress is only for the look, not the function.

2. The design is distinctive.
   Your product’s shape has to stand out. It should make people think of your brand right away. This might take time — many trade dress trademarks are only approved after people get to know the product.

3. The design has acquired “secondary meaning.”
   This means that when people see the shape or design, they think of your business, not just a general product. That’s why famous shapes like the Coca-Cola bottle are protected — people connect the shape with the brand.

Real-Life Example

Let me share a real-world story to help make this clear.

A few years ago, a small local company here in California came up with a fun, wavy-shaped soap bar. Customers loved it, and it quickly became a hit. Soon after, a big-box store started selling soap bars in the exact same shape.

The small company came to me for help. We looked at their product and saw that the shape wasn’t functional — it was just a cool design. We also saw that their customers already associated that shape with their brand.

We filed a trade dress trademark application, and even though it took some time, we were able to help them protect their design. Now, other companies can’t copy that shape without permission.

Common Mistakes to Avoid

If you’re thinking about trademarking a product design, here are some things to watch out for:

• Don’t wait too long. The sooner you start protecting your design, the better.

• Don’t assume your design is protected just because it’s unique. You need to register your trade dress to really enforce it.

• Don’t forget to check if someone else already owns a similar design. That could cause problems for your business later.

What If Someone Copies My Product Shape?

If someone copies your product design and you have a trade dress trademark, you have the right to take legal action. You can:

• Send a cease and desist letter

• Ask them to stop using your design

• Possibly get money for damages

But even if you don’t have a registered trade dress, you might still have some protection under common law — especially if people already associate your product’s look with your brand.

Still, it’s much stronger if you register your trade dress with the United States Patent and Trademark Office (USPTO).

Do You Need a Lawyer?

You might be wondering, “Can I do this on my own?” The answer is: maybe. But trade dress law is tricky. It’s not always clear what’s protected and what’s not. Having an experienced trademark attorney (like me!) can make a big difference.

I help clients figure out if their design can be protected, guide them through the application process, and defend their rights if someone copies them.

Final Thoughts

Trademarking product shapes and designs can be a powerful way to protect your brand and stand out in the market. If your product has a unique look that your customers recognize, you might have the right to keep others from copying it.

I’m here in Westminster, CA, and I love helping creative people and small businesses protect what they’ve built. If you think you have a product design that deserves trademark protection, don’t wait — let’s talk!

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Contact us:

CANEI

13950 Milton Ave. Suite 300, Westminster, CA 92683, United States

714-783-2222