When it comes to finding an example of trade dress and infringements one need only look to the luxury brand Hermes and its “Birkin” handbag. Considered an easily recognizable and highly coveted bag, it's value comes largely because of its uniqueness and exclusivity. The Birkin’s shape is a registered trademark and while they are no stranger to filing lawsuits against those who infringe on their trademark, it does make it easier for them to win because of their trademarked status.
Trade Dress and Brand Protection
Trade dress trademark can be used to protect your brand from lookalikes and counterfeits.
Trade dress includes all the unique elements used to promote a product or service encompassing the “total image and overall appearance” of a product including the size, shape, color, color combinations, textures, and graphics. Included with the design, packaging, color of product or package, and even flavor encompass trade dress.
It is important for brand owners to consider filing design patents and trade dress for their pieces to protect and control who can use it's likeness.
To receive a trade dress, the United States Patent and Trademark office will consider functionality and distinctiveness. Trade dress rights do not expire if the design is used as a source identifier in commerce. An advantage of a trade dress would be that it may serve as a deterrent against copying or counterfeits. To infringe on a design patent an ordinary consumer need only be confused of the source of a product.
Dr. Martens brand has also filed lawsuits enforcing trade dress of its boots and shoes citing its unique features of "(1) yellow stitching in the welt area of the sole,” (2) a two-tone grooved sole edge, (3) the distinctive DMS sole pattern, and (4) a black fabric heel loop."
For more information on Trade Dess Protection click to read more at Wilson Legal Group P.C.'s firm page.
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All information and summaries are intended as informational only regarding legal trends and news. Nothing should be taken as legal advice or legal opinion and readers should seek out advice from legal counsel prior to acting on information provided by this blog.
