New York trademark attorney Mariya Ortynska has participated in the intellectual property conference, organized by National Association of Patent Attorneys of Ukraine (NAPA).
On October 10, 2025, Mariya Ortynska delivered presentations in the hybrid (online and offline) event for the IP-practitioners. She shared her insights on the topic of protection on non-traditional trademarks in the United States.
Mariya touched upon topics of interior and exterior as non-traditional trademarks, showcasing some registered examples and their real-life applications. In the course of this theme, Mariya Ortynska also discussed the precedential TTAB case regarding inherently distinctive trade dress, sharing insights on Seabrook Food test, which is used in order to assess whether the trade dress (a) consists of a general shape or design; (b) is unique or unusual in a particular field; (c) is not a mere refinement of a commonly-adopted and well-known form of ornamentation for Applicant’s goods and/or services; (d) is capable of creating a commercial impression that is different from the words accompanying it.
The following part of the presentation contained information and examples of trademarked scents and tastes. These cannot have inherent distinctiveness, meaning they can only be registered when they are not functional and have acquired distinctiveness.
When considering functionality, TTAB refers to the Morton-Norwich Product test, according to which the following factors are considered:
- The existence of a patent disclosing the utilitarian advantages of the design;
- Advertising materials disclosing the utilitarian advantages of the design;
- Competitors’ access to functionally equivalent designs;
- Facts that determine the results of the design in a relatively simple or inexpensive way of manufacturing the product.
Concluding part of the presentation was dedicated to color and color combinations as a trademark. Trademark attorney Mariya Ortynska cited In re Medline Industries, Inc., 2020 USPQ2d 10237 (TTAB 2020) case to demonstrate how TTAB assesses this issue, particularly its approach to the likelihood of confusion between a trademark registered in particular color and a trademark application using the same color but in a different shade (pantone).
New York trademark attorney Mariya Ortynska is a frequent speaker on topics related to trademarking. Learn more about trademark services at Ortynska Law.
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