The concept of “trade dress” is sometimes hard to grasp. It is different, yet similar, to a design patent or copyright over expressive works. Trade dress typically refers to the shape or configuration of a product or a product’s packaging. However, to be protectable as trade dress, such configuration or shape must serve a source-identifying function, just like any other trademark. That’s the distinguishing factor between a design patent and/or copyright – the source identifying role. The classic trade dress example is the iconic shape of a Coca-Cola bottle. When you see that curved bottle, you immediately think of the Coca-Cola company and its products. It is an example of trade dress and product packaging.
Trade dress becomes more difficult when venturing outside of product packaging. Some trademarks can be “inherently distinctive” due to their arbitrary nature when applied to relevant goods. For example, “Apple” is inherently distinctive when applied to computer products because “apple” is not descriptive or suggestive of computer products. When dealing with product packaging, trade dress can also be inherently distinctive. However, when dealing with product design – such as the layout of a store – trade dress can not be inherently distinctive. See Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000). To achieve protectable trade dress for product design, you must prove secondary meaning – which means that when the consuming public sees your specific product design, they immediately make a connection to you, the brand source. Also, trade dress cannot be “functional,” which means that you cannot take a product configuration out of the marketplace and claim it as your own if the configuration is necessary for others to compete in the market. An example of a failed trade dress claim is the Hooters girl outfit. See commentary HERE regarding the famous Hooters v. Wing House trade dress case.
I explain those basic trade dress principles in order to present the next Featured Case on Florida IP Trends.
I’ll be back in the next few days to comment on the actual case, but the basic premise is that Medieval Times has sued a local competitor who also offered a dinner show “inspired by the true medieval tradition of royal families inviting guests to a festival and feast to watch knights compete on horseback.” That quote is from the First Amended Complaint, and I have a feeling that it will come back to haunt the Plaintiff in the future…
Until Part II, enjoy some pictures from my (coincidental) recent visit to Medieval Times earlier this month: