Earlier this week I wrote about a host of new Apple Watch related trademark filings from Apple, including TAPTIC ENGINE.  The New York Times reviewed the watch this week and I was quite intrigued by this statement: “The Apple Watch’s most ingenious feature is its “taptic engine,” which alerts you to different digital notifications by silently tapping out one of several distinct patterns on your wrist.”

The author, Farhad Manjoo, went on to explain how this works in more detail:

“As you learn the taps over time, you will begin to register some of them almost subconsciously: incoming phone calls and alarms feel throbbing and insistent, a text feels like a gentle massage from a friendly bumblebee, and a coming calendar appointment is like the persistent pluck of a harp. After a few days, I began to get snippets of information from the digital world without having to look at the screen — or, if I had to look, I glanced for a few seconds rather than minutes.”

Could the sensation of the tapping patterns themselves function as trademarks? It is possible that other watches could use vibrations (assuming there are no patent issues). But if Apple’s sensation for, let’s say, receiving a new email, be unique enough to function to the user of the watch to indicate the source (i.e. brand) of the watch and/or software?

“Touch” or texture marks are registrable at the USPTO (for example, the Crown Royal registration for a purple cloth pouch bag, or the expired registration for a leather wrapping around a wine bottle). Sounds can be registered. Trademarks can be three dimensional, whether they are product shapes (Legos for example), or something else. Anything that serves to differentiate the source of the product, even goats on a roof!

Do you think Apple’s Taptic Engine vibration patterns are registrable?  Are they purely functional? Perhaps they can be registered if acquired distinctiveness is shown?

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