The Furniture Manufacturing Industry of Barbados - Caribbean ...

Trademarks
A trademark, or ® is a distinctive sign of some kind which is used by an organization to
uniquely identify itself, its products and/or services to consumers, and to distinguish the
organization and its products or services from those of other organizations. A trademark is a
type of industrial property which is distinct from other forms of intellectual property.
Conventionally, a trademark comprises a name, word, phrase, logo, symbol, design, image,
or a combination of these elements. There is also a range of non-conventional trademarks
comprising marks which do not fall into these standard categories.
Applied to furniture, it needs to be understood that trademarks will not protect the furniture
designs themselves, but only the name/phrase used to designate the supplier. As such,
trademarks ban be quite valuable and important as a part of the branding and marketing of
Barbadian vernacular furniture.
Trade dresses
‘Trade dress’ is a legal category that is similar to ’trademarks’; some legal experts say that
‘trade dress’ is in fact a sub-category to ‘trademarks’.
What is a trade dress? The term refers to characteristics of the visual appearance of a product
or its packaging (or even the facade of a building such as a restaurant) that may be registered
and protected from being used by competitors in the manner of a trademark. These characteristics
can include the three-dimensional shape, graphic design, colour, or even smell of a
product and/or its packaging.
‘Trade dress’ as affirmed by the U.S. Court of Appeals for the Federal Circuit in Washington,
D.C., in an earlier landmark furniture ruling in favour of Weatherend Estate Furniture
(1995), ‘involves the total image of a product and may include features such as size, shape,
colour (or colour combinations), texture, graphics or even particular sales techniques.’ Trade
dress effectively prohibits infringement by any unauthorized parties, treating the designs
themselves as a functioning and protected trademark.
There are two basic requirements that must be met for trade dress protection. The first is that
those features must be capable of functioning as a source indicator—identifying a particular
product and its maker to consumers. In the United States, package design and building facades
can be considered inherently distinctive—inherently capable of identifying a product.
However, product design can never be inherently distinctive, and so such trade dress or
other designs that cannot satisfy the 'inherent distinctiveness' requirement may only become
protectable by acquiring 'secondary meaning.' In other words, the mark may be protected if
it acquires an association in the public mind with the producer of the goods.
Trade dress must also be non-functional in order to be legally protected; otherwise it is the
subject matter of patent law. What is functional depends strongly on the particular product.
To be non-functional, it cannot affect a product's cost, quality, or a manufacturer's ability to
effectively compete in a way that does not affect its reputation. For example, colour is functional
in regard to clothing because that product is purchased substantially because of its
colour and appearance, but colour is not functional on household insulation, which is purchased
purely to be installed in a wall and is never seen.