Bohan Mathers: Footenote 5, Trade Dress versus Design Patent

In designing a product, form may or may not follow function. When it comes to the distinctive shape or configuration of a product's packaging, and sometimes of the product itself, such a design may be, or become, a trademark of that product. This sort of trademark, usually referred to as "trade dress," may be registered, provided that the design is not either functional in itself or dictated by a functional characteristic of the product, and that the design, like any other trademark, is capable of distinguishing the maker or the source of the goods. When a non-functional product or package design cannot function as a trademark, some design features of otherwise utilitarian items may be protected by copyright, or a design patent may be obtained for novel, non-obvious designs or configurations of articles of manufacture.