Title 17 of the United States Code provides federal protection, while most states are known to have their own statutory provisions providing for registration and protection of trade and service marks. Trademark protection under common law grows out of an interest to protect against unfair competition by infringers. Now, both in common law causes and in statutory claims, those interests remain protected and have been extended to marks which consist of package designs and structural designs of products. Secondary meaning is a term of art used to describe the mark's source identifying characteristics. A mark is not a trademark unless it identifies the source of the goods that it is applied to.
Some marks are stronger than others.
The type of the mark also has a significant impact upon pleading and proof in trademark infringement actions. 808 F2d 291 Non-distinctive marks include ordinary geometric shapes, surnames or first names, and geographical names. The nature of package design differs from trademarks or service marks. But a functional design is not protectable under the trademark laws because protection provided to purely functional designs would impinge upon the constitutional mandate against the impairment of competition. It was therefore registerable on the Principal Register without proof of secondary meaning.