The U.S. Patent and Trademark Office (”USPTO”) recently approved registration of the irregular shape of a hamburger patty as a trademark, meaning that the owner of the mark, Bubba Foods LLC (Bubba’s) had made a sufficient showing to the USPTO that the below shape of its burger was not functional and that the shape itself serves to identify Bubba Burgers as the source of burgers so shaped.

Such marks, known as “product configuration marks” are less common than more typical trademarks, such as names, slogans or logos. However, while the process is not an easy one, such non- traditional trademarks, which can also protect aspects of a product such as smells, sounds and the appearance of a retail establishment, can confer powerful rights on an owner.

Bubba’s application will now be published for opposition by the USPTO – allowing any entity which wishes to oppose the application.

However, by getting its application allowed, Bubba’s has cleared a significant hurdle. Protection for non-traditional trademarks, such as product configuration marks, is typically difficult to obtain. In the food industry, once such trademarks are protected they can offer a tremendous advantage to the owner – who enjoys immediate source recognition attached to the way the food looks and the ability to keep competitors from using the same configuration to sell similar food.

First, the owner of the product must make a showing that the shape it seeks to protect as a trademark is not functional – that is, there is no function that the particular configuration serves, such as ease of manufacture. In fact, a showing that a particular configuration is actually less efficient and more expensive – an element Bubba Burger asserted - can support a determination that a product configuration is not functional.

Entities seeking to register the configuration of their foods must also make a showing that the particular configuration has acquired distinctiveness, or “secondary meaning” such that consumers recognize the particular configuration as a source indicator. Typically this is done through proving years of use, supplying sales information, advertising of the unique configuration such as “look for” advertising, and press coverage. Unsolicited comments from consumers also support such a showing.

Competitors will now have an opportunity to assert whether they have any beef with Bubba’s ability to protect the shape of its burger patty.