Can trade dress be functional?

In general terms, trade dress is functional, and cannot serve as a trademark, if a feature of that trade dress is "essential to the use or purpose of the article or if it affects the cost or quality of the article." TrafFix Devices, Inc. v. Mktg.

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15.12 Infringement-Elements-Validity-Trade Dress-Non-Functionality...

15.12 Infringement-Elements-Validity-Trade Dress-Non-Functionality Requirement

Name: 15.12 Infringement-Elements-Validity-Trade Dress-Non-Functionality Requirement
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Federal - Jury Instructions - 9th Circuit - Civil

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US-JURY-9THCIR-15-12

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Sample Jury Instructions from the 9th Circuit Federal Court of Appeals. http://www3.ce9.uscourts.gov/jury-instructions/ 15.12 Infringement-Elements-Validity-Trade Dress-Non-Functionality Requirement is a legal concept related to the protection of a company's trade dress. Trade dress is the unique design elements of a product or service that make it recognizable. It may include the shape of the product, its packaging, and its color scheme. The non-functionality requirement is a legal standard that must be met for a company's trade dress to be protected. To be valid, the trade dress must not contain elements that are functional, or that could make the product more efficient or cheaper to produce. The elements of trade dress must also be distinctive enough to be recognizable as belonging to a particular company or product. If the trade dress meets these requirements, then it is eligible for protection from infringement.

15.12 Infringement-Elements-Validity-Trade Dress-Non-Functionality Requirement is a legal concept related to the protection of a company's trade dress. Trade dress is the unique design elements of a product or service that make it recognizable. It may include the shape of the product, its packaging, and its color scheme. The non-functionality requirement is a legal standard that must be met for a company's trade dress to be protected. To be valid, the trade dress must not contain elements that are functional, or that could make the product more efficient or cheaper to produce. The elements of trade dress must also be distinctive enough to be recognizable as belonging to a particular company or product. If the trade dress meets these requirements, then it is eligible for protection from infringement.

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Elements of a Trade Dress Infringement Claim That evidence must prove all three of the following: That the plaintiff owns protectable rights in the trade dress, which must be a) inherently distinctive or have taken on secondary meaning, and b) not functional.

Trade Dress Infringement: Everything you Need to Know The strength or distinctiveness of the trade dress. Defendant's intent to copy and profit off plaintiff's reputation and goodwill. Products' similarity. Evidence of actual confusion. Degree of care exercised by buyers. The area, manner, and degree of concurrent use.

In general terms, trade dress is functional, and cannot serve as a trademark, if a feature of that trade dress is "essential to the use or purpose of the article or if it affects the cost or quality of the article." TrafFix Devices, Inc. v. Mktg.

Trade dress is generally protected through common law rights, but like with any other trademark products, it can be registered for legal protection in federal court should your product be infringed on. Such as with other trademark products, registration occurs through the U.S. Patent and Trademark Office (USPTO).

The Lanham Act protects trade dress if it serves the same source-identifying function as a trademark. It is possible to register trade dress as a trademark, but for practical reasons most trade dress and product configurations are protected without registration under 15 U.S.C. § 1125(a).

Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another.

Trade Dress contemplates the general appearance of a product including not only the design of the product but also its packaging. Color, texture, shape, scent, or even flavor can all be components of trade dress.

Trade dress is protected under trademark law, so the Lanham (Trademark) Act applies whether you have a registered or an unregistered mark. In fact, the law makes no distinction between a trademark based on a word (such as the name of your brand or product) and a trademark based on something visual (trade dress).

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For a product's design to be protected under trademark law, the design must be non-functional. Unregistered trade dress requires a showing of non-functionality, distinctiveness, and likelihood of confusion to support a finding of infringement.The nonfunctionality element highlights that trade dress is not about a customer's preference for a functional quality of a game. One thing is clear: the mere existence of alternative designs does not result in nonfunctionality. No formal registration with the Trademark Office is required to claim trade dress rights.

15.12 Infringement-Elements-Validity-Trade Dress-Non-Functionality Requirement

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How do you prove trade dress infringement?

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Can trade dress be functional?

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