Federal trademark protection of a product’s design or packaging can provide significant commercial advantages to the trademark owner, but it is often challenging to obtain. Most applicants for rights to such “trade dress” face two significant hurdles from the U.S. Trademark Office: a functionality refusal and a refusal on the basis of failure to function as a mark, that is, a finding that the applied for matter is nondistinctive and incapable of serving as an indicator of source. Nonetheless, given that trademark rights, properly maintained, can potentially last forever, it is well worthwhile to file a trademark application for such marks, when appropriate. If successful, a federal trademark registration on the Principal Register will issue, carrying with it the presumption that the registration is valid, the mark is nonfunctional and the owner has the exclusive right to use the particular product design or packaging.
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