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"LAWCHEK® Intellectual Property"
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What is trade dress? |
Trade
dress refers to the total image of a product, particularly the
nonfunctional ornamental features that indicate the origin of the
product. Trade dress
encompasses such features as the packaging and labeling of products, the
shape of the product itself, and the color or color combinations used
with the product or its packaging.
Examples of trade dress include:
the hourglass shape of Coca-Cola bottles, the pocket stitching of
Levi Strauss blue jeans, the pink color of Owens-Corning fiberglass
insulation, the cover format of People magazine and the
distinctive shape of the Ferrari Daytona Spyder automobile. To
be protectable, a product's trade dress must either be inherently
distinctive or have acquired secondary meaning.
Two Pesos, Inc. v. Taco Cabana, Inc., 112 S. Ct. 2753
(1992). Secondary meaning
is attained through exclusive use of the trade dress features for an
extensive time period such that the public associates the trade dress as
an indication of origin, rather than the product itself.
There
are no registration requirements for trade dress; protection attaches
automatically if the trade dress is sufficiently distinctive.
Trade dress infringement actions are usually brought under 15
U.S.C. § 1125(a), commonly referred to as § 43(a) of the Lanham Act.
An action for trade dress infringement under § 43(a) requires
proving: (1) the trade
dress is either inherently distinctive or has acquired secondary
meaning; (2) the competing trade dress will likely cause consumer
confusion as to the origin of the product; and (3) the trade dress is
nonfunctional (i.e., not essential for effective competition in the
marketplace). LeSportsac,
Inc. v. K-Mart Corp., 754 F.2d 71, 75 (2d Cir. 1985).
In trade dress infringement actions, the court generally will
examine the impact of the trade dress as a whole and not examine
individual elements of the trade dress. |
This is not a substitute for legal
advice. An
attorney must be consulted.
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