The skull bottle design shown below also made Works’ top five, and it is certainly eye-popping. It was created by John Alexander, Dan Aykroyd’s co-founder of Crystal Head Vodka. Works loves “this package design because of its unique shape and distinctive look.” Apparently the USPTO agrees on the point about distinctiveness, as it is the only one of the five that appears to be federally-registered as a non-traditional product container trademark. Inherently distinctive too.
We’d probably suggest adding another to the Works’ list, as our friends over at Capsule have designed a pretty awesome award-winning vodka bottle for the Double Cross brand (dubbed “a sacred vessel”):
So, what is it about vodka that inspires such creative effort and success in package and container designs? Works answers the question this way:
“When it comes to driving sales and building brand equity in the spirits world, package design and advertising are often more important than product quality (one notable exception is Tito’s Vodka, which has exploded onto the scene without premium package design and with precious little advertising). Most packages in the vodka category feature clear or clouded glass bottles, and most brands compete with sexy, simple and premium designs. Differentiation is the name of the game, and also a very difficult feat to accomplish.”
As a trademark type, and to the point made about differentiation of vodka brands through package design, this left me wondering what other vodka bottle designs beyond Aykroyd’s skull design have received a passing grade at the USPTO, when it comes to trademark ownership of non-traditional trademark rights in the appearance of the container, or to use Capsule’s richer word, vessel?
As it turns out, these vodka container configurations have received passing grades in the trademark world, because each has been federally-registered or approved by the USPTO for publication, as an inherently distinctive design mark, from left to right, the elephant design, a guitar design, an embedded pebbled design; and a pink camouflage pattern design:
In addition, these vodka bottle designs also have received passing grades at the USPTO, moving from left to right, the square bottle design, stylized bottle design, angled plane design, and egg-shaped form on legs with an eagle on top, but not as inherently distinctive designs, instead as ones that have acquired distinctiveness with proof of secondary meaning under Section 2(f) of the Lanham Act:
And finally, these vodka bottle designs have not made a passing grade at the USPTO, each residing on the Supplemental Register, where they are designated only as capable of distinctiveness, but not yet so, moving from left to right, the conjoined cylindrical shapes design, parallel lines design, flared base design, and the Imperial Crown of Russia design:
So, how would you grade each of the vodka bottle designs shown above, on trademark grounds, and on purely aesthetic or design grounds?