Rebel cartoon stick figure with green hair pointing at a chalkboard with “Configuration Marks” written in large chalk letters — representing a blog post about configuration marks and non-traditional trademarks.

Non-traditional trademarks are unconventional and unique forms of trademarks, including trade dress, color marks, shape marks, configuration marks, position marks, sound marks, scent marks, motion marks, hologram marks, texture marks, and taste marks. Non-traditional trademarks are less common than traditional trademarks but provide a creative and innovative way for businesses to establish and protect their brand identities.

A configuration mark is a type of trade dress consisting of the specific arrangement of features or parts in a product – it captures the overall design of a product, which can include combinations of shape(s), color(s), word(s), and other visual feature(s) present in the design. The overall design in a configuration mark can be applied to a product or its packaging. In order to be registered as a trademark, a configuration mark must be capable of identifying the source of the product, distinctive, and not protect visual features that are functional or essential to the use of the product.

Configuration marks are similar to, but distinct from, shape marks (focusing on the three-dimensional shape of a product) and position marks (protecting the specific placement of a feature on a product). Sometimes the line can also be blurred between a configuration mark and a design mark (which protects the specific appearance of a design). When looking at a description of a configuration mark, look for phrasing that describes the overall design of a product or packaging, and not just the overall shape or specific placement of a feature. For example, configuration marks often include words like “configuration” or “conformation” in the description of the mark, but sometimes also only describe the shape and coloring of the mark.

Some of the oldest, still-active configuration mark registrations in the US involve playing cards and pencils. The United States Playing Card Company owns trademark registrations for the Bicycle Playing Card configuration mark, first registered in November 1893 [1], and the Squeezer Trip Playing Card configuration mark, first registered in May 1906 [2]. Historical pencil configuration mark registrations include the Mirado Pencil configuration mark, first registered in May 1906 [3], the Dixon Red & Black Pencil configuration mark, first registered in May 1921 [4], and the Ticonderoga Pencil configuration mark, first registered in April 1927 [5].

Want to learn more about trademarks? Check out our posts on US TM Registration Process, 5 Key Facts About Trademarks, and “Intellectual” Property? Sounds Made Up.