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2 Comments on "The Fashionable Supreme Court: Will They Say Yes to the Trade Dress?"

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Elizabeth
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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 »
Jonathan
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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 »
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