the overall size and shape of the pistol and the external accents and features of the pistol. The mark includes the relative proportions of the external accents and features of the pistol, including (1) the angle and shape of the grip in relation to the slide; (2) the size and shape of the trigger guard; (3) the length, depth, and shape of the relief cuts on the sides of the slide; (4) the angle, shape, size, and separation of the lines and ridges on the slide (slide serrations); and (5) the size and shape of the exposed portion of the hammer. The dotted lines indicate features that are not claimed as a part of the mark, including: the shape of the front and rear sight, the shape of the trigger, and the exposed portion of an inserted magazine.The specimen submitted with the application (which is supposed to show the mark as seen by the public) is below.
To start, trade dress that is functional, or "essential to the use or purpose of the article or if it affects the cost or quality of the article" is not registerable. 15 USC 1052(e)(5); TMEP 1202.02(a); Qualitex Co. v. Jacobson Prods. Co., 34 USPQ2d 1161, 1163-64 (1995). The test for functionality is complex. For a better explanation of functionality than I can ever make, see John Welch's article here.
If the aspects of the product design sought to be registered are not functional, the trade dress must also have acquired distinctiveness in the marketplace. See TMEP 1202.02(b)(i) ("A mark that consists of product design trade dress is never inherently distinctive and is not registrable on the Principal Register unless the applicant establishes that the mark has acquired distinctiveness..."). An applicant faces a "heavy burden in establishing distinctiveness in an application to register trade dress." Id. Generally, the applicant must establish through a combination of a convincing amount of advertising, sales figures, length of use, survey evidence, survey evidence, etc. that the public has come to recognize the applicant as the source of the product embodied by the design.
In sum, if the applicant can establish that the product configuration is (1) non-functional and (2) has acquired distinctiveness, it can be registered as a trademark on the Principal Register.
Interestingly, on the same day the application above was filed, Sig Sauer filed two other applications for slight variations of the gun design. Those applications are here and here. It may be that Sig Sauer hopes, by slightly tweaking the elements claimed in the application, it can get at least one of these applications through the registration process.
According to my quick search, these are the first trademark applications for a gun design filed by Sig Sauer.
What do you think? When you see the gun configuration above, do you think of Sig Sauer?
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