15-Jul-09 8:00 AM  CST  

When Appearances are Deceiving by Gabriel Gelb 

Product and packaging designs can be easily copied. Here’s how companies can protect themselves.

Imitations may be a form of flattery, but when it involves the look and feel of a product or package – a concept known as trade dress – the repercussions can be serious.

Imagine, for instance, the confusion that consumers would feel if a computer brand other than Gateway was distributed in a black-and-white cow-spotted box or if any fast-food chain other than McDonald’s Inc. displayed golden arches.

The problem is that many businesses don’t understand how easily the appearance of products and packaging can be legally copied, so they fail to develop and protect trade dress as they do other trademarks.

Sowing further confusion is the fact that the scope of legally protectable trade dress has narrowed in some respects and grown in others in recent years. The Supreme Court in 2000 gave companies more leeway to imitate product design as long as buyers don’t associate “the look” with only the original brand. At the same time, more elements may now qualify as protectable trade dress, including colors and sounds.

So how can companies make the most of trade dress, while reducing their vulnerability to imitation? We advise laying the groundwork early, well before imitation occurs.

Companies should start by devising a distinctive design for their product, service or package. They should apply to register that trade dress with the U.S. Patent and Trademark Office, and then quickly advertise the link between “the look” and the brand to establish the distinctiveness needed to complete the registration. They should then test the power of that link in the minds of buyers with the type of survey research recognized by the courts.

We have found, as expert witnesses in more than two dozen trade-dress cases, that preparation of this kind helps companies more easily defend their valuable intellectual property – whether it is the design on the instep of a cowboy boot, the layout of a golf-course hole or the color of residential insulation. Here’s a closer look at t how companies should establish themselves early to limit their exposure to copycats.

To read the full article, download a copy here: When Appearances are Deceiving

 

For additional information on this Expert Witness article, please contact:

Gabriel Gelb
281.759.3600 X1014

Source: Gabriel Gelb
http://www.gelbconsulting.com

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