Ornamental Trademarks

January 13, 2023 — In trademark law, an ornamental mark is a trademark that is used primarily to indicate the source of the goods on which it appears, but which also includes a decorative or artistic feature. These features may include logos, designs, or other elements that are intended to be visually appealing or to convey a specific message. Ornamental marks are typically used on products such as clothing, jewelry, and other consumer goods. They are distinct from functional marks, which are used to indicate the intended use of a product or to indicate that it has a specific feature or quality.

When it comes to registering a trademark, it is important to understand the difference between ornamental and functional marks because the two are treated differently by the USPTO. A functional mark is one that serves a specific purpose, such as a shape that helps to dissipate heat or a design that helps to reduce wind resistance. These types of marks are not registrable because they serve a functional purpose and granting a monopoly on a functional feature would prevent competitors from making similar products. On the other hand, an ornamental mark is one that serves primarily an aesthetic purpose and does not affect the performance of the product. These types of marks can be registered because they do not prevent competitors from making similar products.

The purpose of a trademark is to identify and distinguish the goods or services of one company from those of another. The key to determining whether a mark is ornamental or functional is to examine the relationship between the mark and the goods or services. A mark that is ornamental will be primarily for the purpose of identification and distinction, whereas a functional mark will be primarily for the purpose of affecting the performance of the goods or services.

In order to register a trademark, the mark must be distinctive and non-descriptive. A mark is considered distinctive when it is able to identify a particular source of goods or services. A mark is considered non-descriptive when it does not directly describe the goods or services. Ornamental marks are often considered distinctive and non-descriptive because they are not directly related to the goods or services.

For example, a clothing company that uses a logo that features a stylized version of a tree would be considered an ornamental mark. The tree design serves to identify the clothing company as the source of the goods, but it also includes a decorative or artistic feature. This mark would be considered distinctive and non-descriptive, and would be eligible for registration.

On the other hand, a clothing company that uses a logo that features a stylized version of a tree with a branch that serves as a hanger would be considered a functional mark. The hanger serves a specific purpose, which is to hang the clothes. This mark would not be eligible for registration because it serves a functional purpose.

It is important to note that even if a mark is considered ornamental, it may still be refused registration if it is similar to an existing mark. In order to be registered, a mark must be unique and not likely to cause confusion with other marks.

In conclusion, ornamental marks are used primarily to indicate the source of the goods on which it appears, but which also includes a decorative or artistic feature. These types of marks can be registered because they do not prevent competitors from making similar products. However, it is important to understand that even if a mark is considered ornamental, it may still be refused registration if it is similar to an existing mark. It is important to have a clear understanding of what constitutes an ornamental mark and what doesn’t in order to have a successful trademark registration process.

If you have any questions regarding trademarks or need to register a trademark, contact one of our attorneys at Gleam Law.