1. David Orozco, © 2008 The Shape of Things to Come: Non–Traditional Trademarks, from the iPod to the Chippendales Dancers David Orozco Assistant Professor of Business Law School of Business and Economics Michigan Technological University

2. David Orozco, © 2008

3. Motion Colors Shapes Sounds Architecture

4. David Orozco, © 2008 “The mark is comprised of a three dimensional spray of water issuing from the rear of a jet propelled watercraft and is generated during the operation of the watercraft. “ Yamaha Motor Co. Registered for “jet propelled water vehicles” Motion Trademark

5. David Orozco, © 2008 “The drawing is lined for the color blue, and color is a feature of the mark.” Tiffany and Co. Registered for “jewelry, watches and clocks, precious and semi-precious stones; decorative art objects…” Color Package Trademark

6. David Orozco, © 2008 Hershey Chocolate Co. Chocolates and Candy Shape Trademark

7. David Orozco, © 2008 The mark consists of a five tone audio progression of the notes D FLAT, D FLAT, G, D FLAT and A FLAT.” Intel Corporation “Computer hardware and computer operating software, microprocessors, integrated circuits and semiconductor devices.” Sound Trademark

8. David Orozco, © 2008 “The color(s) yellow is/are claimed as a feature of the mark. The mark consists of a three-dimensional configuration arc design.” McDonald’s Corporation Restaurant services Architecture Trademark

9. David Orozco, © 2008 Innovation & Design In a saturated marketplace, innovation and design are increasingly valuable ($). Consumers are Sophisticated (design demand) Firms need to stand out in a crowded marketplace (design supply)

10. David Orozco, © 2008

11. Regular old shopping cartIDEO’s shopping cart

12. David Orozco, © 2008 axiom : an established rule or principle or a self-evident truth

13. David Orozco, © 2008 Burberry Limited v. Geconf SpA Photograph of Mayor Bloomberg proclaiming a counterfeit goods store closed in a raid - Bebeto Matthews/AP

14. David Orozco, © 2008 Red Bull vs. Red Bat

15. David Orozco, © 2008

16. “Imitation is the sincerest form of flattery”  Charles Caleb Colton “It is better to fail in originality than to succeed in imitation”  Herman Melville

17. David Orozco, © 2008

18. The Role of Trademarks

19. David Orozco, © 2008 Hershey’s Kisses®

20. David Orozco, © 2008

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22. David Orozco, © 2008 or

23. David Orozco, © 2008 HSY

24. David Orozco, © 2008

26. Three Trademark Quirks Trademarks are supposed to prevent consumer confusion about the source.  A trademark applicant has to prove its trademark is distinctive. Trademark rights may last as long as the product is being sold (in theory forever). Trademarks cannot be functional.

27. David Orozco, © 2008 Distinctive?

28. David Orozco, © 2008 http://www.youtube.com/watch?v=9RajNvJ3bCU

29. David Orozco, © 2008 Distinctive?

30. David Orozco, © 2008 “The mark consists of a three-dimensional human torso with cuffs around the wrists and neck collar comprising of a bow tie” “Adult entertainment services, namely exotic dancing for women in the nature of live performances” Trademark

31. David Orozco, © 2008 The Argument “By taking the cuffs and collar of the tuxedo and leaving a void where the shirt should be, Applicant invited its all female audience to ‘fill in the space’ with their own fantasy. [T]he Chippendales dancer is larger than life and can represent whatever each individual in the audience desires him to represent.”

32. David Orozco, © 2008 The Trademark Office “There is nothing unique or distinctive about a male dancer wearing cuffs and a bow tie and collar. This is considered to be one of various ways for strippers and male entertainers to dress. A theatrical act, by definition, requires uniform or costume for the purpose of entertainment and drama.”

33. David Orozco, © 2008 Distinctive Engine Roar? SOURCE: Michael B. Sapherstein, “The Trademark Registrability of the Harley-Davidson Roar: A Multimedia Analysis”, 1998 B.C. Intell. Prop. & Tech. F.101101

34. David Orozco, © 2008 Harley Davidson “The mark consists of the exhaust sound of applicant's motorcycles, produced by V- Twin, common crankpin motorcycle engines when the goods are in use.”

35. David Orozco, © 2008 Using a shape trademark to extend the life of a functional product configuration.

36. David Orozco, © 2008 Honda “engines for use in construction, maintenance and power equipment.” “The mark consists of the configuration of an Engine”

37. David Orozco, © 2008 The iPod Shape & Clickwheel “the design of a portable and handheld digital electronic media device comprised of a rectangular casing displaying circular and rectangular shapes therein arranged in an aesthetically pleasing manner.”

38. David Orozco, © 2008 Summary Non-Traditional Trademarks are pushing the intellectual property envelope They can be advantageous  To secure sensory brand elements They are hard to execute  The iPod Case Study offers an inside look at successful execution  Type “iPod shape trademark” in Google for The Wall Street Journal article

39. David Orozco, © 2008 Thank You! Acknowledgments: C.E. Hanifin, freelance writer

40. David Orozco, © 2008 Sources: The United States Patent and Trademark Office, www.uspto.govwww.uspto.gov Michael B. Sapherstein, “The Trademark Registrability of the Harley- Davidson Roar: A Multimedia Analysis”, B.C. Intell. Prop. & Tech. F.101101 (1998), http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/199810 1101.html#fnBa http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/199810 1101.html#fnBa David Orozco and James G. Conley, “The Shape of Things to Come”, The Wall Street Journal, http://online.wsj.com/article/SB121018802603674487.html http://online.wsj.com/article/SB121018802603674487.html

41. David Orozco, © 2008 ? ? ? ?