K Shapes that may be necessitated by the nature of the good themselves

 Two issues:
o Functionality
o Distinctiveness
 Functionality
o Non-functional
 Can be registered
 Proceed with distinctiveness analysis
 Serves no utilitarian purpose
 Design does not serve a functional purpose
 Triangular baking mold
 Triangular chemical cake for use in metal plating
o De Facto Functional
 Design is directed to the performance of a function
 Ex: spray bottle (for holding and spraying liquid) (In re Morton)
 If de facto functional + distinctive -> registrable
 Design of a product has a function (spray bottle to hold fluid)
o De Jure Functional
 Functional as a matter of law
 Design of a product is superior to other available designs and provides
competitive advantage to the user
 Underlying design is one which would be costly to do without
 Cant be registered -> competition
 Ex: pistol grip water nozzle
 Product is in its particular shape because it works better in this shape
 Utilitarian – superior in function or economy of manufacture
o Necessary elements of mechanical construction, essential to the practical
operation of a device and which cannot be changed without lessening the
efficiency or materially increasing expense
o Serves to be practical and useful purpose

L Color, unless defined by a given form

 Color alone, UNLESS displayed in a distinct or arbitrary design, does not function as a
trademark
 VICTORIA MILLINGS: black and red in a diamond (not distinctive)
 If color is functional (example: amber beer bottle) -> unregistrable
 QUALITEX -> green gold dry cleaning press pad