What is a trade dress case?
Trade dress is the commercial look and feel of a product or service that identifies and distinguishes the source of the product or service. It includes the various elements (such as the design and shape of materials) used to package a product or services.
What is a trade dress violation?
Trade dress infringement occurs when one company uses trade dress similar enough to another’s to cause a “likelihood of confusion” in an ordinary buyer’s mind. The legal term “trade dress” refers to the general appearance of a product or its packaging that reveals its source to customers.
How do you prove a trade dress infringement?
There are four elements that are typically examined in trade dress infringement cases:
- Definition;
- Functionality;
- Distinctiveness; and.
- Likelihood of confusion.
Can trade dress be protected?
As with other types of trademarks, trade dress can be registered with the U.S. Patent and Trademark Office (USPTO) and receive protection from the federal courts. To receive protection, both of the following must be true: The trade dress must be inherently distinctive, unless it has acquired secondary meaning.
Is trade dress a legal term?
Trade dress is an aspect of trademark law, which is a form of intellectual property protection law. Trade dress is an extension of trademark protection to “[t]he design and shape of the materials in which a product is packaged, [primarily].
Can trade dress be protected if not registered with Uspto?
Trade dress may thus be protected and enforced under the Lanham Act, whether it is registered or unregistered, similar to trademarks and service marks (though there are important distinctions, as discussed in this practice note).
Can trade dress generic?
The existence of a design patent may either help or hurt the assertion of trade dress rights. If, during the term of the patent monopoly, the design so dominates the market, it may become generic of the goods, or considered functional, and thus trade dress protection will not be available.
Why do so many trade dress cases involve unregistered marks?
This is often because of the costs involved, particularly the costs of proving distinctiveness (see below). While a trade dress that is not registered is still protected under the Lanham Act, registering it as a trademark gives you additional protection in federal courts.
What are the rights associated with a trade name and a trade dress?
A trademark offers legal protection for a logo, symbol, phrase, word, name, or design used to show the manufacturer of a product. Trade dress protects all elements used to promote a specific service or product.
How long does trade dress protection last?
10 years
Federal trade dress registrations last for 10 years and can be renewed for another 10 years upon expiring. Companies can also register their trade dress on a state level. The average cost of a trade dress registration is $673.
How long is trade dress protected?
15 years
A design patent will usually protect the product trade dress for a period of 15 years. This will provide the necessary time for the trade dress to develop secondary meaning without interference from competitors. The design patent application must be filed before the one-year “on sale” bar under 35 U.S.C.
Is trade dress a type of trademark?
Trade dress is a type of a trademark. Therefore, it follows that if trade dress is not registered, it is still protectable under the Lanham Act, as long as the trade dress owner can show distinctiveness and that it is nonfunctional.
What are the statutory damages for counterfeit trade dress infringement?
If the court finds that the trade dress infringement in question involved willful use of counterfeit trade dress, it can award statutory damages of up to $2 million per counterfeit trade dress per type of goods or services sold or distributed.
When can a plaintiff’s trade dress be raised in a lawsuit?
It can be raised when a defendant utilizes elements of the plaintiff’s trade dress to describe the plaintiff’s products, not to identify the plaintiff as the source of the goods or services.
How are trade dress rights protected?
Trade dress rights, like trademark rights, are governed by and protected by a mixture of the Federal Lanham Act, individual state laws, and common law.
What is a likelihood of confusion in a trade dress case?
When making a trade dress dilution claim, it is not necessary for the plaintiff to show a likelihood of confusion. Instead, the trade dress owner will need to show that there is a likelihood of dilution. This standard is currently encoded under the Trademark Dilution Revision Act of 2006.