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Topic: Trade dress

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In the News (Sat 19 Jan 19)

  Trade dress - Wikipedia, the free encyclopedia
Trade dress refers to characteristics of the visual appearance of a product or its packaging (or even the facade of a building such as a restaurant) that may be registered and protected from being used by competitors in the manner of a trademark.
However, product design can never be inherently distinctive, and so such trade dress or other designs that cannot satisfy the 'inherent distinctivness' requirement may only become protectable by acquiring 'secondary meaning.' In other words, the mark may be protected if it acquires an association in the public mind with the producer of the goods.
Trade dress must also be nonfunctional in order to be legally protected; otherwise it is the subject matter of patent law, if anything.
en.wikipedia.org /wiki/Trade_dress   (303 words)

 1-406-442-8560 Gough, Shanahan, Johnson & Waterman, Helena, Montana Law Firm Features Trade Dress   (Site not responding. Last check: 2007-10-24)
Trade dress is the design and appearance of a product together with the elements making up the overall image that serves to identify the product presented to the consumer.
Trade dress that has acquired distinctiveness through secondary meaning is trade dress that the public has begun to associate with a single source or producer, even if the actual producer is unknown, rather than just the product itself.
Trade dress infringement is grounds for a civil action, regardless of whether trade dress is registered or not.
www.gsjw.com /html/trade_dress.html   (613 words)

Trade dress, which is a product’s image or overall appearance, including "size, shape, color or color combinations, texture, graphics, or even particular sales techniques," also protects designs.
Trade dress may be protected if it has acquired secondary meaning or because it is so inherently distinctive that it is likely to be immediately recognized as emanating from a single source.
Under trade dress law, if the functional aspect or purpose could be established in many other ways than involved in the subject design, that factor may be enough to destroy the claim that the design is primarily functional.
www.usip.com /nl/parallel.htm   (1207 words)

 Journal of Accountancy: Accounting for trade dress: companies need to accurately value their product's unique packaging ...   (Site not responding. Last check: 2007-10-24)
Trade dress is among the intangible assets listed in Statement no. 141 that meet at least one of these two criteria.
Trade dress now is broadly defined to cover a product's total image and may include features such as size, shape, color, texture and even sales techniques.
Examples of protected trade dress include the design of a magazine cover, the shape of an automobile, the design of a golf hole, the shape of a cracker and the cowboy imagery used to promote a brand of cigarettes.
www.findarticles.com /p/articles/mi_m6280/is_5_194/ai_94132582   (1371 words)

 Trade Dress   (Site not responding. Last check: 2007-10-24)
Trade dress is a concept that arose in business fairness cases and is primarily applicable to products or packaging.
Have your own distinctive "trade dress' and voila, you actually have something possibly trademarkable and perhaps visual arts copyrightable and you may be way ahead of the game opting for registering for those protections.
Trade dress, like trademarks when you keep the registration active and the fees paid, do not expire but you can lose your rights by allowing the distinctiveness to you to be diluted.
www.idearights.com /trddrss.htm   (450 words)

If an unregistered trade dress is inherently distinctive, there is no need to prove that the dress has a secondary meaning; if the dress is descriptive, it is protectable upon a showing of secondary meaning; and if it is generic, it is not entitled to protection.
The trade dress in the Sunbeam American Classic Mixmaster, which includes a torpedo-shaped housing, a handle which attaches to the front of the housing and arches over the housing, and a tear-drop shaped face plate on the front of the housing, was protected from copying by West Bend.
Trade dress protection may also be available in connection with products, packaging, or business forms and stationery which are worthy of design patent, utility patent or copyright protection.
library.findlaw.com /1999/Jul/1/128357.html   (3356 words)

 Trademark and Trade Dress (Article)   (Site not responding. Last check: 2007-10-24)
Trade names and assumed business names are merely used to identify the name under which a business is conducted, and they are only registrable on the state or county levels.
Trade name and assumed business name filings aid the municipality in determining who is responsible for a business conducted under a fictitious name for purposes of litigation and in verifying that taxes are paid by those businesses.
Trade dress is established by proving that the claimant has created a work bearing nonfunctional characteristics which have developed some notoriety and for which the claimant is known.
www.artistic-law.com /ci/188.html   (2161 words)

 Trade Dress (Protecting and Registering Trade Dress, Trade Dress in Book Jackets, Product Configuration)
Trade dress is governed by the same set of laws that protects unregistered trademarks.
To be protectable, trade dress must be inherently distinctive or possess "secondary meaning" (the public associates the packaging with a single source).
As a rule, for trade dress to be protected, it must be instantaneously identifiable in the mind of the purchaser.
copylaw.com /new_articles/tradedress.html   (1688 words)

 Trade Dress   (Site not responding. Last check: 2007-10-24)
Trade Dress is the total image of a product or service including product features such as design, size, shape, colors, packaging, labels, graphics or business features such as decor, architecture, uniforms, layouts and styles of service.
Trade dress is determined by overall impression on the relevant public and not by the impact of each element taken separatly.
Trade dress infrigement is measured by the likelihood of confusion to the public.
www.rennerkenner.com /tradedress.html   (217 words)

 Trade Dress   (Site not responding. Last check: 2007-10-24)
Such a trade dress, or mark, is not subject to copying by concerns that have an equal opportunity to choose their own inherently distinctive trade dress.
Protection of trade dress, no less than of trademarks, serves the Act's purpose to "secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers.
Denying protection for inherently distinctive nonfunctional trade dress until after secondary meaning has been established would allow a competitor, which has not adopted a distinctive trade dress of its own, to appropriate the originator's dress in other markets and to deter the originator from expanding into and competing in these areas.
www.youknowitall.com /103TradeDress/USTradeDress103.htm   (6864 words)

 Virtual Trade Dress: A Very Real Problem
Trade dress protection is broader in scope than trademark protection, both because it protects aspects of packaging and product design that cannot be registered for trademark protection and because evaluation of trade dress infringement claims requires the court to focus on the plaintiff's entire selling image, rather than the narrower single facet of trademark.
Virtual trade dress threatens the coherency of federal intellectual property policy because it transgresses the established boundaries and usurps the traditional roles of trademark, copyright, and patent law.
Federal law bars the unauthorized duplication of trade dress only if it confuses consumers, misrepresents a commodity, or dilutes a mark, [204] whereas it bars the unauthorized duplication of copyrighted material in a wide variety of contexts, confusing, misrepresentative, or otherwise.
www.tomwbell.com /writings/FullVTD.html   (15304 words)

 Protection of Unregistered Trade Dress under Section 1125 - United States Trademark Law Overview
This trade dress was found in the trial court to not have acquired secondary meaning in the marketplace, however, it was found to be both inherently distinctive and nonfunctional.
In an action for infringement of unregistered trade dress, the plaintiff, under §1125(a)(3), must now prove that its trade dress is nonfunctional.
In close cases between classifying trade dress as product "packaging" or "design", courts are required to err on the side of "design", with its attendant proof of secondary meaning requirement.
home.att.net /~jmtyndall/ustm/tradedress.htm   (658 words)

 Bell, Virtual Trade Dress (excerpt)
The justifications for protecting trade dress, as distinct from trademark, have not received much scholarly attention.
Trade dress runs the peculiar risk, however, of constituting the very commodity that consumers value and, thus, becoming virtual trade dress.
Virtual trade dress thus cannot serve the primary goal of trademark law: to inform consumers about the hidden qualities of goods and services.
www.tomwbell.com /NetLaw/Ch07/VTD-.html   (990 words)

Trade dress is a combination or arrangement of elements that comprise the interior and/or exterior design of a business, usually in the context of a retail or restaurant business.
Trade dress is protected by federal and state trademark laws if it distinguishes the goods or services of one company from those of its competitors.
Protectable trade dress consists of three elements: (1) a combination of features (used in the presentation, packaging or "dress" of goods or services) (2) which is nonfunctional and (3) whose distinctiveness reveals to consumers the source of goods or services.
www.entreworld.org /Content/EntreByline.cfm?ColumnID=181   (515 words)

 Trade Dress
Trade dress also has been defined as “…a category that originally included only the packaging, or ‘dressing,’ of a product, but in recent years has been expanded by many courts of appeals to encompass the design of a product.” Wal-Mart Stores v Samara Bros., infra.
(3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.(Emphasis supplied).
Where the expired patent claimed the feature in questions, one who seeks to establish trade dress protection must carry the heavy burden of showing that the feature is not functional, for instance by showing that it is merely ornamental, incidental, or arbitrary aspect of the device.
www.yarbroughlaw.com /Patent%20Articles/Tradedress2.htm   (1639 words)

Trade dress protection is not viewed as impermissibly extending the constitutionally limited term of the patent and copyright grant.
In particular, it states that trade dress can be registered without a showing of secondary meaning if the relevant public is likely to identify the source of the product or service with the subject matter claimed as trade dress.
It provides that in a civil action for trade dress infringement for trade dress not registered on the principal register, the person asserting trade dress protection has the burden of proof to prove that the matter is not functional.
www.myersbigel.com /pat_articles/pat_article17.htm   (5745 words)

A key requirement for trade dress to be protectible is that it be "nonfictional"; in other words, it must be possible to create a similar product without the same trade dress elements.
This demonstrates another advantage of trade dress over copyright protection, for to the extent an item of trade dress is registered as a federal trademark, there is an incontrovertible record about what is protected.
The willingness of the courts to extend trade dress protection to an overall impression is demonstrated by a recent case that protected the "total visual image" of a restaurant, even though the defendant in the case clearly displayed its own name on its restaurants.
www.gesmer.com /publications/trademark/3.php   (647 words)

 "Virtual Trade Dress" Abstract   (Site not responding. Last check: 2007-10-24)
Trade dress protects the public from confusing the features that identify competing commodities.
Virtual trade dress stakes out rights more enduring, and in some respects more broad, than those available under either copyright or patent law.
Virtual trade dress offers an especially tempting means of monopolizing the "look and feel" of computer interfaces and virtual environments.
www.tomwbell.com /writings/AbVTD.html   (127 words)

 Haynes Boone | KnowledgeConnect | Insurance Coverage for "Trade Dress" Infringement   (Site not responding. Last check: 2007-10-24)
The Court addressed the threshold issue of whether trade dress infringement is a covered offense under the CGL policy.
The Court noted that trade dress is protected under section 43(a) of the Lanham Act, 15 U.S.C. 1125, which prohibits any person from using a term, name, symbol or device, or any combination thereof, which is likely to confuse, mistake or deceive as to the manufacturer, origin or description of a good.
With such an expansive definition of advertising, it would appear that many defendants in cases in which trade dress violations are alleged may successfully invoke the carrier’s duty to defend.
www.hayboo.com /knowledge/knowledge_detail.asp?groupid=all&page=pubs&pubid=192   (1189 words)

 Trade Dress Registration and Protection
Trade Dress is a distinctive, nonfunctional feature, which distinguishes a merchant's or manufacturer's goods or services from those of another.
This is accomplished by showing that the public associates your trade dress with a particular source.
You can also claim trade dress protection if the public associates other products with your trade dress and believes the source to be your company, causing a likelihood of confusion.
www.amerilawyer.com /trademark/tm_tradedress.htm   (273 words)

 Undressing Trade Dress
Moreover, by recent statutory amendment, a plaintiff claiming trade dress infringement without the benefit of a federal registration has the burden of proving that its trade dress is not functional (15 U.S.C. § 1125(a)(3)).
However, the circumstances under which one may claim that his trade dress is "inherently distinctive," and thus capable of protection without a showing of secondary meaning, have been narrowed.
A trade dress registrant may initiate litigation possessing the valuable presumption of the trade dress's validity, placing the owner in a more favorable position than if it had to rely solely upon common law rights (15 U.S.C. § 1057(b)).
www.oblon.com /Pub/HudisTradeDress0403.html   (1300 words)

 GigaLaw.com: Trademark Law and High-Tech Product Designs   (Site not responding. Last check: 2007-10-24)
The court rejected the notion that the "trade dress" at issue -- seersucker with appliqués -- was inherently distinctive.
For example, the requirement that trade dress be "non-functional" was not in the statute; it was judicially created.
In 1999, Congress added to the Lanham Act the requirement that the holder of non-registered trade dress has the burden of proving that the trade dress is non-functional.
www.gigalaw.com /articles/2000-all/landau-2000-07-all.html   (1336 words)

 Trademark & Trade Dress Law - IPWatchdog
The core element of determining whether trademark infringement exists is to inquire whether the "reasonably prudent consumer" is likely to be confused as to the origin of the good or service bearing one of the marks.
Trade dress is the totality of elements in which a product or service is packaged or presented.
Because trade dress includes all factors making up the total image under which a product or service is presented to customers, it potentially covers almost all aspects of appearance.
www.ipwatchdog.com /trademark.html   (347 words)

 Accounting for TRADE DRESS   (Site not responding. Last check: 2007-10-24)
Trade dress refers to the unique packaging or appearance of a company’s product, such as the red and white Campbell’s soup can label.
The value of a company’s trade dress—such as the red-and-white label of a Campbell’s soup can—is subjective and largely influenced by how broadly or narrowly the statutes and court decisions define trade dress protection.
The trade dress rules are sure to continue evolving and accountants need to pay close attention to legal developments so they can properly serve their clients and employers.
www.aicpa.org /pubs/jofa/nov2002/prosser.htm   (2930 words)

 What is Trade Dress and Do You Have One?
The law relating to trade dress stems from the common law doctrine prohibiting unfair competition.
To qualify for protection, the dress must be non-functional (to avoid conflict with the patent laws) and, like a trademark, must serve the purpose of denoting the source of the product.
Examples of trade dress include the shape of the Coca-Cola bottle, the front grill on the Rolls-Royce automobile, the shape of a classic Ferrari sports car, the round wall-thermostat by Honeywell, and the shape and appearance of the Big Bertha golf club head by Callaway.
www.fwlaw.com /tradedress.html   (511 words)

 The Protection of Trade Dress
Whether or not the party claiming protectable rights in such trade dress can prevail on such claim depends on a number of factors used by the courts.
Strength of a plaintiff’s trade dress depends upon the interplay of two elements, the uniqueness of the trade dress and the investment in imbuing a trade dress with secondary meaning.
We hold that, in an action for infringement of unregistered trade dress under §43(a) of the Lanham Act, a product’s design is distinctive, and therefore protectible, only upon a showing of secondary meaning.
www.ivanhoffman.com /tradedress.html   (1682 words)

With increasing international trade and focus on the various forms of intellectual and industrial property protection for such endeavors, there is mounting interest in the protection of product features not effectively or traditionally covered by patent or copyright.
Thus, although litigation in the U.S. over newly introduced product/service design, packaging or trade dress features is increasingly common, the unique factual situations presented by each case clouds the applicability of both established trademark principles and issues of public policy (or the perceived equities presented).
The registration of trademark rights in the United States for a broad range of trade dress or Industrial Design subject matter is generally advisable, increasingly viable and, relative both to the cost of litigation and the benefits afforded in this large marketplace, very inexpensive.
www.oblon.com /Pub/anderson-1.html   (1611 words)

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