Explore the vast range of titles available.

When is a design just a design, and when is it a trademark? Over the last several decades, courts have developed a clear framework for evaluating the distinctiveness of certain unconventional marks, especially those typically conceived of as \"trade dress.\" The Supreme Court has drawn a line between product packaging, on the one hand, and product design, on the other. Packaging features are treated just like any other potential trademark in the sense that we protect them automatically if they are inherently distinctive, and we require evidence of secondary meaning if they aren't. Product design is different. Like color, it is incapable of being inherently distinctive and can be protected only when it has acquired secondary meaning. There's just one problem with this fundamental rule: It isn't true. Or at least, it isn't the whole truth. As we show in this article, sometimes courts and the Trademark Office don't recognize features like logos as being part of a product's design, and as a result, they ignore the categorization system and evaluate the claimed features for inherent distinctiveness. Something similar happens with certain product packaging features, except in reverse. In other words, courts are engaged in a previously unrecognized \"step zero\" before they classify trade dress features and apply the normal rules of distinctiveness for product packaging and product configuration. In that largely implicit step, courts and trademark examiners make their own judgments about the role of that feature, and particularly whether they believe consumers are likely to regard those features as trademarks. While courts and the Trademark Office have been slow to articulate rules for step zero - or even to acknowledge that it exists - we show in this article that in practice they are recognizing what we call \"trademark spaces\": locations that consumers are likely to assume are serving as trademarks. When they apply this implicit step zero, courts and the Trademark Office frequently treat the location of a claimed feature on the product or package as an important determinant of trademark status. As we describe in detail, some locations are special. Use in those spaces goes a long way to convincing a court or trademark examiner that the design is a trademark. The recognition of trademark spaces offers a way to rationalize the step zero analysis and to begin thinking more systematically about the relationship between distinctiveness and use as a mark. Courts can and should evaluate use in a trademark space as part of the broader step zero inquiry. But they should do so explicitly and based on evidence, not instinct. Bringing step zero out into the open will help us better understand when and why consumers react to certain designs as trademarks. And it will pave the way for us to reject claims to own things that either do not or should not function as trademarks.

As trademark law is currently litigated and understood, a plaintiff may succeed on an infringement claim by showing that (1) it owns a valid trademark, and (2) the defendant used a mark in commerce that is likely to confuse consumers into thinking that the plaintiff's and defendant's products come from the same source. We argue that this conventional understanding of the cause of action is missing an element: The plaintiff should also be required to show that the confusion arises from protectable features of the plaintiff's trademark. Without this \"causal tracing\" requirement, plaintiffs can effectively claim exclusive rights to features that the law allows anyone to use, such as functional features or generic terms. Eliding the link between protectable features and confusion can hinder competition and undermine the purposes of trademark law.

The Qualitex decision in 1995 inspired trademark reformation and harmonization worldwide for the protection of color marks. While protecting color trademarks has not created issues of market entry in domestic markets, the growth in the number of transnational market participants and an increased utilization of non-traditional branding may catalyze color depletion in international trade. After exploring how current advertising expenditure requirements and distinctiveness requirements affect the registrability and protection of a color mark, this Note offers potential global reforms to help minimize hurdles for smallscale transnational participants and the threat of international color depletion. Specifically, due to consumers' increasing exposure to international brands through e-commerce, courts should give more deference to survey results on Internet platforms to establish distinctiveness in the brand's relevant customer base. The proposals in this Note will benefit trademark owners and potential transnational market participants by ensuring that consumer confusion is based on actual market practices, which will in turn prevent color depletion by keeping widely used colors in the public domain. Ultimately, by remaining conscious of the facts and issues presented in this Note, attorneys, legislators, and trademark owners can ensure fair market competition and mitigate color depletion from taking place in transnational trade.

The fashion industry thrives because of the consuming public's desire to be affiliated with appealing brands. Some of these coveted brands are best identified by particular colors -- for example, Tiffany & Co's blue, Hermes's orange, and Christian Louboutin's red. Others are internationally known for specific designs that incorporate color -- such as Missoni's vibrant patterns. The Supreme Court, echoing Congress's intent to define trademark broadly, denied a per se exclusion to the protection of single-color trademarks, but perhaps the fashion industry's fundamental dependence on color renders the protection of single-color marks particularly problematic. This is the issue at the heart of the recent Christian Louboutin SA v. Yves Saint Laurent America Inc litigation, in which the Second Circuit held that designer Christian Louboutin's \"Red Sole Mark\" constitutes a valid trademark, but only when the red on the sole is in contrast to the remainder of the shoe.

When Ralph Brown wrote Advertising and the Public Interest: Legal Protection of Trade Symbols (1948), the modern era of trademark law had just begun. The Lanham Act, the foundation of trademark law today, was only 2 years old, and the nature of modern commerce was only just beginning to take shape. Quite a lot has changed in 50 years. Unfortunately, the changes in trademark doctrine over the last 50 years are not supported by the economic learning. Rather, these changes have loosed trademark law from its traditional economic moorings and have offered little substance to replace them. However, Brown's doctrinal approach offers a healthy dose of common sense in thinking about trademark law. A brief sketch of the economic foundations of trademark law is provided. It is argued that recent developments threaten to stretch the rationale of trademark law beyond all limits. Some preliminary thoughts on how common sense might be restored to the Lanham Act are discussed.

Companies spend a significant part of their investment in order to create a Brand experience for the consumer. Besides large sums spent on the design of consumer goods, companies such as Apple are eager to create a brand experience by implementing a certain store design. Hence, these companies have a well-reasoned urge to protect such distinct store designs utilizing the current intellectual property system. In the tradition of the U.S. approach, where the get-up of a business venue can be protected by trade dress law, the most recent European Jurisprudence seems to tend towards the protection of such a get-up by trade mark law. As this could be good news for companies with a distinct store concept and design, this new approach also raises some concern: How will the protection of the get-up of a business venue affect competition? What are the measures to guarantee only distinct and non-functional store designs will find their way into the holy land of trade mark protection? This article analyzes and compares the current legal situation in the U.S. and the EU and discusses the available measures in place that will safeguard an undistorted competition.

Since the 1990s, extensive legal activity has developed around the concept of “trade dress,” a subcategory of U.S. trademark law defined as the “total image and overall appearance of a product.” This essay examines arguments and claims made for the application of trade dress to designed spaces, from the Taco Cabana fast food chain to Times Square billboards, and tracks an emerging legal definition of ambience or atmosphere as property. Placing this legal development within a broader shift toward experiential concerns in design and preservation practices, the article considers some of the historical questions raised in light of the expansion of legal purview into realms of consumer experience.

Companies spend a significant part of their investment in order to create a Brand experience for the consumer. Besides large sums spent on the design of consumer goods, companies such as Apple are eager to create a brand experience by implementing a certain store design. Hence, these companies have a well-reasoned urge to protect such distinct store designs utilizing the current intellectual property system. In the tradition of the U.S. approach, where the get-up of a business venue can be protected by trade dress law, the most recent European Jurisprudence seems to tend towards the protection of such a get-up by trade mark law. As this could be good news for companies with a distinct store concept and design, this new approach also raises some concern: How will the protection of the get-up of a business venue affect competition? What are the measures to guarantee only distinct and non-functional store designs will find their way into the holy land of trade mark protection? This article analyzes and compares the current legal situation in the U.S. and the EU and discusses the available measures in place that will safeguard an undistorted competition.

This Comment examines recent product design case law to evaluate the effect of Wal-Mart on how secondary meaning can be shown by trade dress owners, identifies which types of trade dress claims are most likely to satisfy the secondary meaning requirement, and describes the growing rift among the circuits in the application of factors that are used to evaluate secondary meaning. This Comment then argues that product design litigation since Wal-Mart reveals a growing gulf among the circuits' evidentiary requirements for proving secondary meaning. In time, it will be necessary for the Supreme Court to answer the question it posed, yet left unanswered, in Wal-Mart: \"What must be shown to establish that a product's design is inherently distinctive for purposes of Lanham Act trade-dress protection?\"