Either that, or a transonic area rule design.  (Let's see who figures this one
out.)

Kind regards,

Denys. . .

Denys Beauchemin
HICOMP
(800) 323-8863  (281) 288-7438         Fax: (281) 355-6879
denys at hicomp.com                             www.hicomp.com


-----Original Message-----
From:   Jim Brust [SMTP:[log in to unmask]]
Sent:   Friday, March 24, 2000 3:48 PM
To:     [log in to unmask]
Subject:        FW:Re: "trade dress" decision

Would that be a Coke a Cola bottle?



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------------------( Forwarded letter 1 follows )--------------------
Date:         Fri, 24 Mar 2000 13:40:23 -0800
To: [log in to unmask]
From: Steve.Dirickson[sdiricks]@OZ.NET
Sender: [log in to unmask]
Reply-To: Steve.Dirickson[sdiricks]@OZ.NET
Subject: Re: "trade dress" decision

> Design is not distinctive??

Not unless it is something that creates a distinction in the public's
mind that produces, based solely on the design, an identification of
the source.

An example of a design that I think would meet the requirements: a
cylindrical glass container that, from the base, tapers inward in a
smooth curve, flares back out to form a slight "hourglass" shape, then
tapers back in to an opening at the top slightly smaller than a
quarter, and is "scalloped" around its entire circumference. What is
it?



























Think about what you just called it. You didn't think "soft-drink
bottle". You didn't even think "cola bottle". You thought "Coke
bottle". The design of the container is so strongly associated with
the source that we name the container based on who makes, not what is
in it.
That is a design that I think easily meets the criteria specified in
the decision for a design that is "inherently distinctive":
  "The attribution of inherent distinctiveness to certain categories
of word marks and product packaging derives from the fact that the
very purpose of attaching a particular word to a product, or encasing
it in a distinctive package, is most often to identify the product's
source."

Another example: the boxes that Gateway computers come in. Everyone
ships computers in boxes similar--sometimes identical--to the boxes
Gateway uses, except for one item: the black/white "cowhide" pattern.
Gateway ships its computers in those boxes ("encasing it in a
distinctive package") specifically so that anyone seeing those boxes
will know where they came from, i.e. they "identify the product's
source." If you see a stack of these boxes sitting in the back of a
UPS truck, you don't think "new computers"; you think "Gateway
computers."


Steve Dirickson   WestWin Consulting
[log in to unmask]   (360) 598-6111