Foley & Lardner won preliminary approval from the United States Patent & Trademark office to register the unusual shape of Bubba burger’s® frozen patty as a trademark. A USPTO examining attorney granted tentative approval for the trademark application, determining that Bubba Foods LLC and its irregular patty shape met the arduous requirements to register as a trademark the shape of the product.
Bubba burger® is the leading branded frozen burger in the United States with over $665 million sales over the past five years. Consumers often associate the brand with its uniquely shaped patty.
While the trademarking of shapes or product configurations is not new, courts and the USPTO have made the process extremely difficult. Applicants must show that the design does not provide any functional benefit to the product. Brand owners also must prove that the shape itself has become so well known to consumers that it has acquired the kind of secondary meaning that trademark law protects. Read more here about the process of trademark registration for irregularly shaped foods.
Partner Robert S. Weisbein represented Bubba Foods in the trademark registration.