Trademark Protection of Product Characteristics: A Predictive Model

Abstract

Marketing professionals, in their quests to find new ways to distinguish products, now seek trademark protection for a wide array of product attributes, such as colors, odors, sounds, and shapes. Public policymakers have been willing to expand trademark protection to these realms, but unfortunately without formulating a coherent philosophical approach to guide their decisions. The author provides a conceptual model that enables marketers to predict how the Patent and Trademark Office and the courts will resolve specific questions regarding the applicability of trademark protection for product characteristics.