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The Emerging Circuit Split over Secondary Meaning in Trade Dress Law
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The Emerging Circuit Split over Secondary Meaning in Trade Dress Law
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Journal Article
The Emerging Circuit Split over Secondary Meaning in Trade Dress Law
2004
Overview
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?\"
