I received four responses to my glass-bottle question; all 4 used
source-specific terms ("Coke bottle" or "Coca Cola bottle"). So this
is pretty clearly a case where the design of the bottle *is*
distinctive as to the source, independent of any names that are (or
are not) on the bottle or the contents of the bottle.

Though, if I had read the entire page before posting, I probably
wouldn't have used that example, since it's right there in black and
white at the bottom of the page.

In the decision, Judge Scalia said that the design of the clothes,
"one-piece seersucker outfits decorated with appliques of hearts,
flowers, fruits, and the like," was not inherently distinctive as to
the source of the clothing. I.e., seeing clothes with that design does
not cause a person to immediately think "Aha, clothing from the Samara
company." Whereas the design of the Coke bottle *does* cause someone
who sees it (or even someone wearing a blindfold who takes such a
bottle into his/her hand) to immediately think "Aha, bottle from the
Coca-Cola company."

A different example: there are lots of computer box designs out there
(the actual computer, not a container/shipping box). An individual
seeing a row of "squat box" server computers, like HP NetServer,
Compaq Proliant, IBM Netfinity, and others would not immediately
identify a particular box as being a specific brand. Sure, they don't
look exactly alike, but the designs--dimensions, color, panels,
finishes, etc.--change often enough that a given box's design is not
an immediate, unambiguous indicator of its source. For these boxes,
the design would not be "inherently distinctive;" a given company's
design is not consistently different enough from the others and
consistently unique to that company to become an immediate identifier
of a product from that company.

But there's an exception: the original NetFrame server boxes. The
blue-striped black monolith design of boxes like the NF250 or NF450
was unique; none of the other builders made a box that would be
confused with a NetFrame box. When you saw one of those boxes, you
instantly knew who made it, *completely independent* of the presence
or absence of the protected identifier "NetFrame" somewhere on the
box. So, this is a design that meets the requirement of the statute
for those that "almost automatically tell a customer that they refer
to a brand,....", and would be a protected design.


Steve Dirickson   WestWin Consulting
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