Trade Dress Protection for Product Design and Configuration: A Comprehensive Case Law Analysis

72 questions on trade dress protection for product design and configuration, answered and cited by the UpLaw editorial team.

• Can a beverage company protect its bottle even if it cannot protect its product's shape?
• Can a company claim trade dress in a website's layout?
• Can a plaintiff ever win the assemblage argument?
• Can a Section 2(f) showing overcome a functionality refusal at the USPTO?
• Can a shape that is dictated by manufacturing cost be trade dress?
• Can trade dress protect a business concept or marketing style?
• Did TrafFix eliminate the alternative-designs inquiry?
• Does a challenger have to satisfy all four Morton-Norwich factors?
• Does a product's overall appearance become non-functional just because each part is arranged distinctively?
• Does a strong functionality showing shift the burden back to the registrant?
• Does the functionality doctrine apply differently to registered and unregistered trade dress?
• Does the Seventh Circuit still consider alternative designs after TrafFix?
• Does the Tenth Circuit's functionality law survive TrafFix?
• Do the individual elements of business décor trade dress have to be unusual?
• How do courts sort trade dress into the packaging, design, and tertium quid categories?
• How does a plaintiff prove secondary meaning in a configuration case?
• How does European product design protection differ from the U.S. approach?
• How does registration change the burden on functionality?
• How does the packaging/design line play out in food and beverage?
• How does the Third Circuit define functionality?
• How is aesthetic functionality best understood in practice?
• How should a business build a defensible configuration trade dress program?
• How should a business decide between trade dress and design patent protection?
• How will virtual and augmented reality test trade dress doctrine?
• Is an incontestable registration immune from a functionality attack?
• Is configuration trade dress a dead letter after Wal-Mart and TrafFix?
• What are the four Supreme Court decisions that built product configuration trade dress law?
• What are the recurring trade dress fights in the automotive industry?
• What competition-policy concern supported the Wal-Mart rule?
• What did Qualitex contribute to functionality doctrine?
• What did Two Pesos establish for trade dress?
• What did Wal-Mart replace in the lower courts?
• What does a defendant look for first in a configuration trade dress case?
• What do successful configuration trade dress claims have in common?
• What emerging technologies will pressure configuration trade dress law?
• What experts appear in a product configuration trade dress case?
• What happened in TrafFix Devices v. Marketing Displays?
• What is the assemblage of functional parts problem?
• What is the difference between de facto and de jure functionality?
• What is the practical difference between claiming a product's look and claiming its style?
• What is the precision requirement for pleading trade dress?
• What is the relationship between the functionality doctrine and the patent bargain?
• What is the relationship between trade dress and design patents?
• What is the Sears-Compco right to copy?
• What is the significance of the black outboard motor case?
• What is the tertium quid in trade dress law?
• What is the two-track structure of the functionality doctrine after TrafFix?
• What kind of evidence should a company preserve to defend a future trade dress claim?
• What role do consumer surveys play in configuration trade dress cases?
• What should counsel do when trade dress classification is debatable?
• What was the Supreme Court's reasoning in Wal-Mart v. Samara Bros.?
• Where did trade dress law come from historically?
• Which circuits recognize aesthetic functionality and which reject it?
• Who bears the burden of proving functionality for unregistered trade dress?
• Why can a feature be functional even if it also looks good?
• Why did Apple lose its iPhone trade dress claim against Samsung?
• Why did the Pocky cookie stick lose its trade dress protection?
• Why did the retrenchment of 2000-2001 happen?
• Why did the TTAB find a guitar-shaped building inherently distinctive?
• Why do companies sabotage their own trade dress claims through advertising?
• Why do configuration cases so often resolve at summary judgment?
• Why does forum selection matter so much in configuration cases?
• Why does the shape of a key blade fail as trade dress?
• Why does trade dress law treat store layouts more generously than product shapes?
• Why do some courts fear the aesthetic functionality doctrine?
• Why is an expired utility patent so damaging to a trade dress claim?
• Why is a product's shape the hardest thing in trademark law to own?
• Why is fashion the hardest industry for trade dress claims?
• Why is functionality the doctrine that does most of the killing?
• Why is the classification of trade dress outcome-determinative?
• Why is trade dress hard to hold in consumer electronics?
• Why were flash-frozen ice cream beads held functional?