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.
Earlier this year the US Patent Office granted Apple Computer trade-dress for the iPod's unique shape, style and circular touchpad which will prevent competitors from imitating the media player's look and feel. Apple has also applied for trade-dress protection for the physical attributes of the iPhone by claiming that the average consumer associates the shape of the phone with Apple. This was in addition to utility and design pending patents for both products.
Last summer Payless paid a substantial settlement to my 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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"Don't Forget About Trade-Dress Protection" by Robert M. Vantress, San Francisco Daily Journal & Los Angeles Daily Journal, October 13, 2009. Read article (PDF)
"Life and Death on the Corporate Battlefield: Advice to Management Employees Departing to Form New Companies," by Robert M. Vantress: Bay Area Lawyer, Vol. 2, Issue 2, March 2006.
Trademark and Trade-Dress Infringement: Knock-Off Imitation
Payless pays K-Swiss $30 million settlement agreement and stops copying "Classic" athletic shoe
(Read case study PDF)
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