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  • Writer's pictureTodd

Trade Dress

Trade dress is some sort of visual element that acts as a source identifier. Trade dress can come in many packages, literally.

Take Crumbl cookies as an example. Crumbl claims trade dress protection for “Whimsical, outline shaped drawings on product packaging, presentation, and décor.”

In particular, Crumbl claims trade dress protection, and has a trademark registration for, for a pink box that fits four cookies.

Crumbl is suing Dirty Dough for trademark infringement, and Dirty Dough fought back in the #UtahCookieWars with billboards with slogans such as “Cookies so Good we’re being sued!” and “We don’t file lawsuits, we just have better cookies.”

Another type of trade dress is configuration or design of a product. Nike has some classic shoe design, such as Air Force Ones, Jordan 1s, and Dunks. BAPE, a company in Japan, got clever with their shoes, and arguably infringed on Nike’s trade dress. Nike filed a lawsuit and this case is pending in the Southern District of New York.

Another example of trade dress can be a store configuration. An example of this is the Apple store. Apple has a registered trademark for the “distinctive designated layout of a retail store comprised of a cube-shaped building constructed almost exclusively of transparent glass…” Apple also has a registered trademark for the layout of the store itself.

There are some additional legal requirements for trade dress, one of which is that it cannot be functional. This means that the trademark itself cannot be something the product needs to work. An example of this is a road sign with two springs on it so it doesn’t blow over. The Supreme Court held that the two springs served as an invention, not as a source identifier. Thus, if something is functional, it does not act as a trademark, because that is what a patent is for.

Please note that the information contained in this article is intended for general informational purposes only and not as specific legal advice. The facts of your situation may differ from this general information. It is not intended to and does not in any way establish an attorney-client relationship.

If you wish to schedule a consultation, let’s work together on your trademark needs


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