Sometimes. Maybe. It depends. A trademark is a source identifier; its purpose is to inform the purchaser of goods or services of the source of those goods or services. A design can be a trademark, but not when it is decorative ornamentation on the item itself. I see this with clients who want to register the design on a t-shirt, a coffee mug or some other item where the design on the item is the very essence of the item.
USPTO Examining Attorney
In evaluating the registrability of a proposed mark, a USPTO examining attorney will consider the location, size, dominance and significance of the proposed mark as applied to an item, and will refer to the Trademark Manual of Examining Procedure for guidance.
If the proposed mark is so thoroughly integrated into the design on item as to be viewed as part of the item, registration will not be approved absent some evidence that consumers recognize the design as a trademark, or that the proposed mark had been used or registered by the applicant for other goods or services.
The Concept: Design Does Function as Trademark
To understand the concept, it is useful to consider an example where a design does function as a trademark. Deere & Company is an American manufacturer of a wide range of agricultural, construction and gardening equipment. The Deere logo of a yellow leaping stag against a green shield graces every piece of equipment manufactured by Deere, and is a stark example of a design that is in no way integral to the overall design of the item on which it appears.
If you want to use a design as a trademark, display the trademark element of the design separately in a location traditional for trademarks; for example, in a hangtag or on a label or packaging. For something like a t-shirt, use a small logo on a sleeve, at the hem, on the back or the breast of the shirt. Browse our site today to learn more about trademark law.