Trademarks are most often thought of as words or designs that convey the source of the product. Everyone knows whose product it is when they see the Nike "swoosh" or encounter the words "Coca-Cola."
Did you know that trademarks extend to other things that convey source? The sound of the NBC chimes is a protected trademark, as is Tiffany's color blue. Building designs such as an IHOP restaurant are trademarks, as well as the shape of the Mrs. Butterworth's syrup bottle and the shape and configuration of an iPod.
Unfortunately, a Tennessee-based whiskey distiller startup is learning about nontraditional trademarks the hard way.
Popcorn Sutton Moonshine, a distiller named after an infamous Appalachian moonshiner, is now a defendant in a federal trademark infringement lawsuit filed by Jack Daniel's. While there is clearly no likelihood that whiskey consumers will be confused between the names Popcorn Sutton Moonshine and Jack Daniel's, the lawsuit alleges that Popcorn Sutton has copied the distinctive shape of the Jack Daniel's bottle and is also using a black and white label with stylized writing.
The Jack Daniel's lawsuit states that there is an unreasonable risk that consumers will conclude that there is an affiliation between Popcorn Sutton and Jack Daniel's when in fact no such affiliation exists.
What can startups learn from this lawsuit? First, while it is obviously important to avoid adopting names and logos that are similar to others' marks already in use, you can still run into trademark trouble with packaging, product designs, colors and sounds.
If you are considering deriving any aspect of your product itself or its marketing, labeling or packaging from a company already operating in similar space, then you might find yourself in legal trouble, much like Popcorn Sutton.