I agree that it can be (and has been) done well (and I know a number of fantastic brand consultants), but I have been genuinely shocked at the number of times that it has been done badly. Just an observation!

Yes. Yes you should.

Christine Farley and I also talk about the VIP Products v. Jack Daniel’s trademark dispute in detail in our recent paper “Raising the Threshold for Trademark Infringement to Protect Free Expression” : papers.ssrn.com/sol3/papers....

Adding more fillips and different exceptions to 43 will be bad for the rest of 43 as the Ct demonstrated in JDI by reading 1 exception’s requirements into another’s; use in commerce is the wrong limit compared to commercial advertising/promotion; confusion itself is not really the interest at stake

I would like to see the “look for” advertising for this design!

Now that’s where things get interesting - would love to see an empirical analysis of how often product configuration marks are formally “lost” after the public stops viewing it as a source identifier. My guess is that it hasn’t happened very often!

This is an interesting issue because of the way that some folks use design patent monopolies to guarantee themselves a period of exclusive use for a product configuration, and that consumers recognize it as a source designation - effectively turning a design patent into a permanent right.