The Lanham Act very broadly defines a trademark as “any word, name, symbol, or device, or any combination thereof” that identifies goods or services, distinguishes them from those of others, and indicates the source of the goods or services. If these three critical elements are present, the possible subject matter available for trademarks is virtually unlimited. Indeed, single colors (UPS brown delivery trucks), product shapes (ZOVIRAX® tablets) and configurations (Apple® iMac® computer), product containers (HEINZ® ketchup bottle) and packaging (TOOTSIE ROLL® wrapper), vehicles (Porsche® 911® automobile), clothing (Dallas Cowboys® cheerleading uniforms), building exteriors (White Castle® restaurant) and interiors (Taco Cabana® restaurant), sounds (NBC® chimes), fragrances (cherry-scented motor oil), and other attention-getting devices are all protectable as non-traditional trademarks.
If you are considering a traditional trademark, it is settled law that the literal portions of a mark are more memorable than any non-literal matter accompanying the literal terms. Accordingly, you want to focus a preliminary search on the literal portion of the mark. Design components should be a secondary consideration to either support the conclusion that a proposed mark is not available or, in the case of a diluted mark, support the finding that the design component may be sufficient to distinguish the marks.