Trade Dress

News & Analysis as of

Lanham Act Cannot Be Used to Create “Species of Mutant Copyright Law”

The US Court of Appeals for the Ninth Circuit upheld a district court decision granting summary judgment to a defendant that its use of digital files did not infringe plaintiff’s trademark or trade dress for its CD-Gs...more

Less Utility Than Alternatives Does Not Make Product’s Trade Dress Protectable

The US Court of Appeals for the Seventh Circuit affirmed a district court grant of summary judgment in favor of a defendant finding that a bag’s design and shape was functional because the claimed design features affect the...more

Food and Beverage Law Update: March 2017

Legalized Drug Use Impacts the Food and Beverage Industry - In the November 2016 general election, voters in Arkansas, Florida and North Dakota amended their state constitutions to authorize the use of marijuana for...more

IP Basics: What are “Trade Dress” and “Trade Secrets?”

In the last post, we discussed copyrights, trademarks and the difference between them. In this post, we will consider the concepts of “trade dress” and “trade secrets.” Trade dress refers generally to “the total image,...more

No Trade Dress Protection For Pink Ceramic Hip Implant Components

The U.S. District Court for the District of Colorado recently denied a manufacturer of ceramic medical products trade dress protection for the color pink for its ceramic hip-implant components. CeramTec sells ceramic...more

Second Circuit Upholds Parody Defense, Tosses Louis Vuitton’s Trademark Suit

In late December, the Second Circuit issued a ruling in Louis Vuitton Malletier, S.A., v. My Other Bag, Inc., affirming the district court’s grant of summary judgment for claims of trademark infringement and dilution of a...more

Drafting Franchise Agreements After Patterson v. Domino’s : Avoiding the Minefield of Vicarious Liability and Joint Employment

Lauded as one of the most important franchise cases in the recent past, Patterson v. Domino’s established a new standard for addressing vicarious liability issues in California. In reaching its decision that Domino’s was not...more

Louis Vuitton Left Holding the Bag

In Louis Vuitton Malletier S.A. v. My Other Bag, Inc., [16-241-cv] (December 22, 2016), the Second Circuit affirmed summary judgment for My Other Bag that its parody bag did not infringe or dilute Louis Vuitton’s trademark...more

Court Throws Out Back Massager Trade Dress Infringement Claims on Motion to Dismiss

As the first-filed paper in nearly any litigation, the complaint is typically subject to rigorous scrutiny from the named defendant to identify any flaws that may dispatch the case via a motion to dismiss. A plaintiff in the...more

Biting the Bulleit

In a complaint recently filed in the Southern District of New York (16 CV 09747), Diageo North America, Inc., makers of BULLEIT bourbon sued Sazerac Company, Inc., alleging that Sazerac’s DR. MCGILLICUDDY’S HONEY WHISKEY...more

When Imitation Goes Beyond Flattery

In a lawsuit filed in the Eastern District of Missouri today, Energizer Brands complained about Spectrum Brands’ “imitation” of its packaging, raising claims of trade dress infringement, false designation of origin, unfair...more

After Plaintiff Asserted Boilerplate Objections to Discovery, District Court Orders Plaintiff's Objections Waived

The plaintiff filed a complaint against the defendant for patent infringement, trade dress infringement and unfair competition, among other claims, based on the defendants' marketing and selling of portable vaporizers. The...more

Four T’s at Four: What Breweries Need to Know About Their IP Before They Consider an Exit

“Forties at 4” was a time-honored Friday tradition among my engineering classmates in college. After our last class, several of them would purchase Miller (if we could find it in a 40 oz) or Old English or some other malt...more

Don’t Let Your Color Trade Dress Protection Fade Away

The US Court of Appeals for the 10th Circuit, in affirming a district court ruling, reaffirmed the availability of trade dress protection for colors, but reiterated that a plaintiff must show that its color trade dress is...more

For Wrigley Field Street Vendors, It’s Win or Go Home

The Chicago Cubs are rolling into the playoffs, putting the finishing touches on a historically dominant regular season with over 100 wins. Cubs fans (like me) even dare to dream that the century-plus long championship...more

Copyright and Trademark Case Review: RunDMC, Stem Cells and Pirates

Copyright Opinions - Unauthorized Copying Not an Element of Prima Facie Infringement Case: Ali v. Final Call, Inc., No 15-2963 (7th Cir. Aug. 10, 2016) - Wood, J. In a suit alleging copyright infringement through...more

Trademarks, Service Marks, and Trade Dress: Key Facts and Pitfalls to Avoid

1. The Difference Between a Trademark, Service Mark, and Trade Dress. A trademark is any word, term, phase, symbol, logo, design, shape, tag line, background, color, scent, sound, device, or combination thereof that...more

Trade Dress Claim Based on Shoe’s Rectangular Metal Toe Plate Booted by SDNY

The Southern District of New York recently booted shoe manufacturer LVL XIII Brands, Inc.’s trade dress infringement suit against Louis Vuitton Malletier S.A. in LVL XIII Brands, Inc. v. Louis Vuitton Malletier S.A.. At issue...more

Trade Dress Infringement: Ivanka Trump Sued for Stepping on Aquazzura’s Toes

On June 21, 2016, Aquazzura Italia SRL (“Aquazzura”), an Italian shoe company, filed a complaint against Ivanka Trump, IT Collection LLC, Marc Fisher Holdings LLC, and M.B. Fisher LLC (collectively, the “Defendants”) for...more

NEIL LANE: Branding in Paradise

I’ll admit it: if there’s a frivolous TV franchise I watch, it’s probably The Bachelor in one of its many iterations. Each series fits the same template: caricatures of eligible men and women stoke the flames of tear-stained...more

Litigation Alert: The Ninth Circuit Leaves Pirate Joe’s Saying “Shiver Me Timbers!”

Late last week, the U.S. Court of Appeals for the Ninth Circuit determined a court had jurisdiction to decide a trademark lawsuit filed by a U.S. grocery store against a Canadian reseller where the products at issue were only...more

Copyright and Trademark Case Review: Wine, Vodka and a Little Karaoke

Copyright Opinions - Eleventh Circuit Seeks Florida High Court's Guidance on Pre-1972 Sound Recordings: Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 15-13100 (11th Cir. June 29, 2016) - Anderson, J. In a suit...more

How Trade Dress Can Help Game Developers Level Up

As game developers continue to face both the threat of having their games cloned and accusations that they too are cloning games, it is increasingly important for developers to understand the safeguards that intellectual...more

Corporate Logos and Copyright: Another Bite at the IP Apple

Can a corporation protect its logo by copyright as well as by trademark law? Traditionally, when one thinks of works protected by the law of copyright, one thinks of substantial works of authorship such as a novel, a...more

Can You Identify Your Trade Dress?

Trade dress is a type of trademark intellectual property right that can protect almost any unique identifying aesthetic design used by a company, from the shape of a product, to the appearance of a website, to the decor of a...more

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