Companies can protect their overall style, products or packaging or "look and feel" from imitators under trade-dress, a less known but possibly a more powerful way to protect brand equity. If implemented and enforced correctly, trade-dress intellectual property laws can protect your business by providing unlimited protection for attributes that are not covered by copyrights, trademarks or patents including product image and overall appearance, product packaging and business style.
This Case Study explains how trade dress protection was used when, last summer, Payless paid a $30 million settlement to client, K-Swiss, to compensate for the profits that Payless realized from selling shoes that copied the Classic brand with the intent to confuse the consumer. The copycats were not exact replicates; however, the differences were subtle enough that people were likely to believe that Payless was a licensed reseller for K-Swiss. Because the corporate identity was closely tied to the Classic look and feel, K-Swiss could not afford to allow anyone to take advantage of its reputation in the marketplace.
Unlike patents and copyrights that cover product designs and functions for a specific period of time, trade-dress protection can last forever. Trademarks protect words, names, symbols that indicate the source of goods or services; however trade-dress covers a combination of design elements such as size, shape, color, texture or graphics.
The purpose of trademarks and trade-dress is to identify the company's products as coming from one source. If an appreciable number of consumers can associate specific attributes with your business or brand, no one else can use the same combination of elements or something that is confusingly similar.
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