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5 years ago

Trade dress is defined as a name, symbol, or device, or any combination thereof, and covers the design of a product. Trade dress can be registered with the United States Patent and Trademark Office (USPTO) so that it is protected. In Wal-Mart Stores, Inc. v. Samara Brothers, Inc., the Supreme Court found that in actions for infringement of unregistered trade dress under §43(a) of the Lanham Act, a product’s design is only protectible where secondary meaning is showed. A product develops secondary meaning when the mark identifies the source of the product to the public. It is interesting to think… Read more »

5 years ago

Justice Thomas’s ruling in Star Athletica has been mostly praised as a clarification and amalgamation of previous law relating to pictorial, graphic and sculptural copyright. Before Star Athletica, there were ten approaches that could be applied to determine the separability of the “useful article” and the “aesthetic feature” in order for the design to be eligible for copyright under 17 U.S.C. § 101. The Court espoused a two-pronged test that conformed to previous caselaw and also to an interpretation of the statute but the test, and Star Athletica itself, fails to completely clarify this difficult area. There are instances where… Read more »

4 years ago

Fast fashion brands such as Zara or Mango often recreate garments inspired by other designers for a lower price. Depending on how the inspired, derivative work is created, it can be a lawful article or unlawful copy otherwise known as a “knock off”. In the fashion industry, the term knock-off refers to any article imitating or copying another article. Some derivative works are legal while others are infringing. Counterfeiting consists in manufacturing or distributing a product or a service bearing a mark that is identical or substantially indistinguishable from a registered trademark. Counterfeiting is always an infringement of intellectual property… Read more »

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