15.7 Infringement-Elements and Burden of Proof-Trade Dress
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FAQ
What is a trademark, and what is a trade dress? A trademark is a recognizable identifier, such as words, designs, logos or colors associated with your business, while trade dress encompasses the visual appearance of your goods or services and packaging.
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).
In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark.
To sue for infringement of trade dress, you must be able to articulate and prove that your trade dress is inherently distinctive, or has acquired secondary meaning, and that the junior use is likely to cause consumer confusion.
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).
§ 1125(a), the plaintiff must demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant's use of the mark to identify goods or services causes a likelihood of confusion.
If the court finds that the trade dress infringement in question involved willful use of counterfeit trade dress, it can award statutory damages of up to $2 million per counterfeit trade dress per type of goods or services sold or distributed.
There are four elements that are typically examined in trade dress infringement cases: Definition; Functionality; Distinctiveness; and. Likelihood of confusion.
