In my opinion, trade dress law suffers from some judicially imposed restrictions that do not consider marketplace realities. One example of this is that in order to protect your trade dress you first have to define it for the court. Sometimes this is a difficult task but not insurmountable, given enough imagination and literary prowess. Take the following trade dress for “Flying Dog” beer for example:
How would you describe it? Not easy, is it? I have no doubt that this company has trade dress rights in their distinctive label design. Is it inherently distinctive as the law would require it to be? I don’t know, but that points to another flaw in trade dress law. It is at least questionable that a court would consider this to be inherently distinctive trade dress, but I’ll stick to my opinion that as a consumer I would know Flying Dog beer when I see it (even without the Flying Dog brand). So, it should be given trade dress status, but how does the law devise a test for this? It almost seems impossible other than to say “one knows it when one sees it”. The key is “distinctiveness” but not necessarily “unexpectedness” (as the law requires). Another problem with this trade dress is that it varies at a certain level of abstraction. While there is certainly a consistent “look”, each bottle above is different in many ways. Trade dress law requires that all products in the “line” must share certain common features. Do these? The pictures all all different and the wording is different. What we have here is a unique artistic style. Putting aside copyright law, which does not protect “style” alone, I submit that trade dress law should. I am unaware of any cases involving products other than artwork itself that have so held. The couple of cases that have protected artistic style for an artist’s works are considered outliers so I don’t know how strongly one can feel about extending those cases to the artistic style of a product package.
Food (or drink) for thought.
by Trademark Attorney Gene Bolmarcich