On February 5th, the Fulton Street Brewery, LLC filed a federal trademark application for the beer tap seen below. The brewery filed this application in Class 020 for "[n]onmetal taps for kegs."
Although most people think of words and phrases as trademarks, this application demonstrates the ability to file a trademark application to protect a design feature of a product. The design of a product is generally registerable as a trademark as long as it is not functional. Section 2(e)(5) and Section 23(c) of the Trademark Act prohibit the registration of "matter that, as a whole, is functional."
A feature is functional if it is "essential to the use or purpose of the article or if it affects the cost of quality of the article." TMEP 1202.02(a)(iii)(A); TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 33, (2001). The Trademark Office will consider the following factors when determining if an article is functional, and thus not protectable as a trademark:
- the existence of a utility patent that discloses the utilitarian advantages of the design sought to be registered;
- advertising by the applicant that touts the utilitarian advantages of the design;
- facts pertaining to the availability of alternative designs; and
- facts pertaining to whether the design results from a comparatively simple or inexpensive method of manufacture.
TMEP 1202.02(a)(v). Unlike patent law, trademark law is design to protect a company's reputation and goodwill, not the way something works. Thus, the "functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm's reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature." Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (1995).
The design of the Shock Top tap does not have any apparent utilitarian advantages. It does not make the pouring of beer any easier. It is not the most inexpensive way to make a tap. And it does not prevent others from designing their own versions of a efficient beer tap. Instead, it is highly creative and displays a unique design that is much more artful than fucntional. Thus, I do not think Fulton Street Brewery will have any functionality issues with getting this trademark registered.