Picture yourself at dusk along the river, walking through a massive outdoor art installation featuring tens of thousands of individually-placed spheres of light on short stalks, reminiscent of blooming flowers. Ok, now stop and answer this: what kind of intellectual property would you use to protect this installation? If you answered “trade dress,” you get a frowny-face sticker, at least according to the Eighth Circuit’s recent opinion in Munro v.… More
Tag Archives: trade dress
The Shape Of My Heart: A Guide To Chocolate Shape Trademarks For Your Valentine
The past year has been an active one in the chocolate trademark wars, as confectionery giants attempt to use trademark law to protect the shapes of iconic candy products. In the US, and in many other jurisdictions, companies can protect product shapes or configurations, but only if they are sufficiently distinctive that the design functions as an indicator of source. Chocolatiers have had varying degrees of success in convincing trademark offices and courts that their confections have attained that status. … More
Creative Trademark Enforcement Part II: Shutting Down The Upside Down
Over the past few years, we have seen numerous instances of companies protecting their trademarks in creative ways – approaches that leverage humor and the brands themselves in order to achieve an acceptable legal outcome while simultaneously promoting the company and its brands, thus minimizing the risk of public relations blowback. In this “Creative Trademark Enforcement” series of blog posts, I’ll be exploring some of the more interesting takes on this approach,… More
Watch: Protecting Product Configurations, Packaging, and Designs
What In-House Counsel Needs to Know
Product configuration and packaging play an integral part in consumer choice and can often set a particular product apart from its competition on the store shelf. Because companies heavily invest in creating unique product designs and packaging that encourage brand association, business owners should also consider protecting those investments as intellectual property.
Peter Sullivan, Natasha Reed and Jenevieve Maerker presented a webinar offering guidance for in-house counsel regarding the different types of intellectual property that may protect product configurations and packaging in the United States,… More
Eat Your Art Out: Intellectual Property Protection for Food
Let’s face it, we live in a food-crazed world. Our current preoccupation with food has less to do with eating it; we also are fascinated with looking at it. Posting photos of food on Instagram is now a universal pastime. Food reality shows like Top Chef, Cake Boss, and Chopped are extremely popular and chefs are now considered bona fide celebrities,… More
Adidas To Trademark Competitors: ‘Two Stripes, You’re Out’
Last month, a U.S. district court in Oregon granted Adidas’ motion for a preliminary injunction against U.S. footwear company Sketchers USA Inc., blocking Sketchers from selling, among other sneakers, a 3-stripe sneaker design that allegedly infringes Adidas’ 3-stripe registered trademark and one of its sneaker designs.
The European Union recently afforded an even wider range of protection for the Adidas sneaker design,… More
Political Speech, Trademarks And The Definition of “Goods or Services”
Last month witnessed the resolution of two trademark infringement cases involving the relationship between political activities and the definition of “goods or services.” On May 18, 2015, State Senator Steve Hershey gave up his right to appeal to the Fourth Circuit from the District of Maryland’s decision that he was infringing the Hershey Chocolate trade dress. On May 19, 2015, however, the Fourth Circuit overturned the case on which the District of Maryland had been relying.… More
Sixth Circuit Rules that Trade Dress Law Does Not Prevent Copying of Functional Design
In Groeneveld Transport Efficiency, Inc. v. Lubecore International, Inc., 2013 U.S. App. LEXIS 18897 (6th Cir. Sept. 12, 2013), an industry veteran and a relative newcomer battled over the appearance of a rather specialized product: automatic lubrication pumps for commercial trucks.
The plaintiff, Groeneveld, began making its pump in the 1980s. Lubecore, the defendant, began selling its own pump roughly 20 years later. … More
Colors as Trademarks: The Gloves Are On In This Baseball Brawl
Rawlings Sporting Goods Co. has brought suit (complaint here) against competitor Wilson Sporting Goods Co. for giving a Wilson® baseball glove with “metallic gold-colored webbing, stitching and lettering” to a major league player — Brandon Phillips of the Cincinatti Reds — who has won the “Rawlings Gold Glove” award in the past but is an endorser of Wilson rather than Rawlings.
Every baseball fan has heard of the Gold Glove awards given annually to 9 players from the National League and American League,… More
Inherent Distinctiveness vs. Secondary Meaning: Chippendales Fights On Despite Setbacks
The U.S. Court of Appeals for the Federal Circuit (CAFC) has affirmed the decision of the Trademark Trial and Appeal Board (TTAB) that Chippendales’ “Cuffs & Collar” trade dress (pictured below) is not inherently distinctive for “adult entertainment services, namely, exotic dancing for women in the nature of live performances.” In re Chippendales USA, Inc., No. 2009-1370 (Fed. Cir. October 1, 2010) (PDF).
For nearly ten years,… More