The Wall Street Journal recently reported that the owner of a Swedish restaurant was suing other businesses for violating its registered trademark, which surprisingly consists of live goats on a grass roof. The PTO and the courts have steadily enlarged the set of trade dress features that might serve as trademarks, and there is no reason, in theory, to treat live animals differently. Nevertheless, the PTO likely made a mistake in this instance when it agreed to register the mark. This article evaluates the requirements for protecting trade dress with trademarks, and explains why a Swedish restaurant should not have exclusive rights to put goats on a roof.
Lee B. Burgunder, Trademark Protection of Live Animals: The Bleat Goes On, 10 J. Marshall Rev. Intell. Prop. L. 715 (2011)