Article Title
Trade Dress Protection and the Confusion with Design Patents: Part One: Trade Dress Protections
Abstract
A company’s sign or symbol certainly constitutes an important business asset. The public recognizes the McDonald’s Arch, the Mercedes emblem, the unique “K” on Kellogg’s products, and innumerable other signs or symbols. These trademarks convince many to purchase the products offered. Marketers also understand that the packaging and design of a product significantly influence a buyer to select a particular item. One need only examine the beautiful designs of perfume bottles or the blue Tiffany box packaging to visualize the time and effort expended to influence the purchase of such products. The law protects the packaging and design of products, but the nature and extent of such protection have led to some confusion among practitioners and scholars. A company may need to decide whether to seek protection in the form of common law trade dress under trademark law or attempt to obtain a design patent. These alternative modes offer different levels of protection. This paper explores the confusion caused by the discrete levels of protection. It clarifies the nature and extent of legal protections offered by trademark law and patent law to trade dress and design patents.