In cases of product design, the consumer normally does not equate the features of the product with the source of the product. For example, if a consumer is looking at a cocktail shaker, the penguin shape is not intended to identify the manufacturer. Instead the shape is designed to render the product itself more useful or more appealing. This is the crux of the issue when a party is claiming its product design or trade dress is a protectible under the Lanham Act.
Identifying a product design falls under the category of trade dress protection. The United States Supreme Court has held in an action for infringement of an unregistered trade dress, a product’s design is distinctive, and therefore protectible, only upon a showing of secondary meaning.
I’ll tell you about secondary meaning next time.