The Poughkeepsie Journal reports that a company in the area has gained a US trade mark registration for the shape of its bag. The Healthy Back Bag already has design protection, but AmeriBag, which has sold the bag since 1995, wanted extra protection.
Lynne Beresford, commissioner of trademarks at the US Patent and Trademark Office, noted that the grant of such protection was rare because consumers don’t normally associate a product’s shape with a message about its origin.
The IPKat is never happy about the prospect of teaching consumers to view product shapes as trade marks. If they don’t see the product shape as a mark ab initio, then you need a very direct message to educate them to do so. The mere fact that the shape has been advertised shouldn’t be enough, without the extra message ‘look for shape X, which indicates the products of Y’.
The IPKat is puzzled by an article in Furniture Today. Domestic fabric suppliers are unhappy with the proposed Orphan Works Bill in the US. An industry representative said:
“if you come across a piece of art – a textile pattern or anything else, and there’s no identification on it, if you do a reasonable search and can’t find the author, you are free to use it with impunity…So the infringer can say he did a reasonable search, and under this proposed law the copyright owner is only entitled to reasonable compensation — assuming you ever knew about the infringement — which would not cover attorneys fees in most suits.”
What the IPKat can’t understand is, who’s losing out here? If the author can’t be traced then there are two options: allow the later use and then allow the author to claim reasonable compensation if he suddenly pops up (what the Act does) or forbid the use, in which case the author will get no remuneration whatsoever, since the would-be user won’t be able to find him to negotiate with him.