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Protecting Your Brand: Trade Dress Litigation

Business and Commercial Disputes By Harvey Binnall PLLC - 2020/02/21 at 11:11am

Experienced Business Litigation Attorney in Alexandria, VA

Intellectual property rights are often associated with copyright, patents, and trademarks, but they are quite a bit broader than many realize — specifically, businesses may own valuable intellectual property in the form of “trade dress.”

Trade dress protection extends to the aesthetic flair associated with a particular product, service, or business, and can be a distinct advantage in a competitive marketplace.  The visual identity of a product, service, or business may not only be attractive in and of itself (and therefore entice customers), but in a crowded industry, can also serve to distinguish your business from competitors.

If you believe that your protected trade dress has been infringed upon by others, then you may be entitled to significant damages pursuant to litigation.  An experienced Alexandria business litigation attorney at Harvey & Binnall can provide the assistance you need to move forward with your claims.

As you explore the possibility of legal representation, let’s run through some of the basic issues in trade dress protection law.  We hope that this will clarify any initial questions that you might have.

What is Trade Dress?

“Trade dress” describes the different visual elements that comprise a product or service.  It is not as specific as a logo (which is a trademark), but instead describes general appearance.  It may involve unique product packaging, or even store decor.

For example, one famous trade dress case involved the decor of a Mexican restaurant, which featured a stylish pink pastel color throughout the restaurant, as well as rounded corners on furniture.  These (and other) elements were sufficient for the court to find the trade dress protected under the law.

To determine whether trade dress is protectable, courts look at the inherent distinctiveness of the trade dress.  Inherent distinctiveness demands the following: a) unusual; b) memorable; c) conceptually separable from the product; and 4) primarily serves as a designator of the origin of the product.

It’s worth noting that aspects of trade dress that are “functional” are not protectable.  For example, if your product has a unique rounded corner for the purpose of enabling it to fold in that direction, then the rounded corner cannot be construed as a protectable trade dress element.

Enforcing Trade Dress Rights Through Litigation

Even if you have a protected trade dress, however, you cannot sue and recover damages for infringement unless you show that the defendant caused a “likelihood of confusion” in the mind of customers.  Whether the defendant’s trade dress caused a high likelihood of confusion depends on a number of factors, from the distinctiveness of your trade dress to the defendant’s intent and evidence of customer confusion.

Contact Harvey & Binnall, PLLC for Legal Assistance

Harvey & Binnall, PLLC is a boutique litigation firm based in Alexandria, VA, serving businesses throughout the DC metro region.  We boast significant breadth and depth of experience, having handled business disputes centering around everything from copyright infringement to trade dress protection.  Our attorneys are industry leaders with a long and consistent track record litigating complex disputes between businesses, from mom n’ pop shops to Fortune 500 multinational companies.

These experiences have given us a great deal of insight with respect to navigating a variety of claims.  We understand just how important it is that legal representation be cognizant of the issues unique to each case — by working closely with the client from the beginning, we are able to glean details about their business (and the particularities of their dispute) that help us to advocate more effectively on their behalf.

Ready to speak to a seasoned Alexandria business litigation attorney?  We encourage you to call us at 703-888-1943 or complete an online intake form to schedule a consultation.