However, the design of a product is not entitled to trade dress protection if it relates in any way to functionality of the product. In a recent decision, one court determined Pebble Beach s Lighthouse Hole was entitled to trade dress protection because the design features of the hole, which included a lighthouse, were not related to its function as a golf course hole. The court found a competitor s replica of the hole infringed Pebble Beach s trade dress. This is usually a misstatement. Trademarks and patents are two different kinds of intellectual property.
Trademarks are words or symbols used to identify the source of a product or service.
The proper terminology is that trademarks are registered , inventions are patented . The only time trademarks are patented is when the trademark is in the form of trade dress discussed above. Trade dress is the non-functional design or configuration of a product that serves to identify its source. Trade dress can be registered as a trademark and may also be patented under a special category of patent called a design patent. The first step is to consider marks that convey an appropriate image for your business and that are protectable under trademark law.