Have I ranted about this lately?  A “trademark” is a word, symbol or other indicator of the source and quality of goods or services, i.e., a noun.  Something can only serve as a trademark if it becomes associated by some segment of the public with a particular source.  When it ceases to do that (perhaps by becoming generic, like aspirin) it is no longer a trademark. One may use such an indicator in the hope that it will become recognized as a trademark, and one may apply to the government to register your claim that it is your trademark, but one cannot trademark (verb, transitive) it.

untitledWhat prompts this admittedly peevish, pedantic post?  A Reuters report this afternoon carries the headline “Apple Trademarks Design of its Retail Stores.”  Not so.  Apple applied to register its claim that the design of its retail stores (their “trade dress”)—including such features as “a clear glass storefront surrounded by a paneled facade” and an “oblong table with stools…set below video screens flush mounted on the back wall”—is sufficiently distinctive to function as a trademark, and the U.S. Patent and Trademark Office, Reuters reports, has granted that registration.  (A copy of which is here.) Registration carries with it significant legal advantages, but it cannot turn that which does not actually function as a trademark in marketplace into a trademark.  Reporters and headline writers, please take note.



No one sweated the small  details of consumer electronics design more than Steve Jobs.  Today’s ruling by the United States Court of Appeals for the Federal Circuit, in a patent dispute between Apple and Samsung, must have him throwing quite a fit, wherever he is.

Apple accused Samsung’s smart phones of infringing patents (pictured) covering the iconic ornamental appearance of the iPhone, as well as a patent covering its handy touchscreen display “bounce back” feature.  Apple sought a preliminary injunction against Samsung’s importation and sale of its competing phones.  A federal district court in California denied that request, and this appeal followed.


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  • Gary A. Rosen

    Gary A. Rosen, a lawyer, has litigated copyright, patent, and other intellectual property cases for more than 25 years, and is a Lecturer in Legal Studies at the University of Pennsylvania's Wharton School. Before entering private practice, he served as a law clerk to federal appellate judge and award-winning legal historian A. Leon Higginbotham, Jr. He holds a degree in physics from Haverford College and graduated magna cum laude from the University of Michigan Law School. He and his wife Lisa, a physician, and their two children live outside Philadelphia.
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