Registering Trade Dress with the USPTO can be a difficult battle. The treatment given to trade dress that is not deemed to be distinctive is often confusing due to the USPTO created category of marks called "merely ornamental". There is a place for this type of refusal (properly considered as a "failure to function" refusal) but when this concept overlaps with the rules for trade dress protection, things get very confusing. This article highlights this problem and recommends a solution.
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