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Trademarks › Trade Dress › Appeals

A Trademark is a legally registered distinctive mark or sign which identifies goods, products or services that originate or are associated with a particular person or enterprise . A typical example of a trademark... more +
A Trademark is a legally registered distinctive mark or sign which identifies goods, products or services that originate or are associated with a particular person or enterprise . A typical example of a trademark would be a company's logo such as the Nike "Check" or McDonald's "Golden Arches."  less -
McDermott Will & Emery

It’s an Old Tune: Third-Party-Use Evidence From Long Ago Can Support Genericness

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The US Court of Appeals for the Fifth Circuit found that the district court abused its discretion in wholesale exclusion of evidence on the issue of genericness. The evidence was offered to show prior use of a trade dress...more

McDermott Will & Emery

Sole Searching: Trade Dress Hopes Booted as Functional, Nondistinctive

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The US Court of Appeals for the Fourth Circuit affirmed a district court’s summary judgment grant in a trademark dispute, finding that the district court did not err in concluding that a subset of design elements lacked...more

Dorsey & Whitney LLP

Wavy Baby’s Shoes Not Entitled to Special First Amendment Protections

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40 years ago, I was the new kid in 6th grade – truly a terrible age in a young girl’s life to try and “fit in” at a new elementary school in a small town. But, one of my best memories from that year was procuring my first...more

ArentFox Schiff

Reflecting on the Interplay Between Real Estate and Intellectual Property in 2023 - Landmark Trademark Cases and Copyright...

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As 2023 came to an end, it offered a prime opportunity to examine significant legal developments in intellectual property case law and implications for the real estate industry in the year to come. Among other things,...more

McDermott Will & Emery

Parody of Iconic Sneaker Isn’t Entitled to Heightened First Amendment Protection

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The US Court of Appeals for the Second Circuit upheld a temporary restraining order and preliminary injunction enjoining use of a trademark and trade dress associated with an iconic sneaker design over a First Amendment...more

McDermott Will & Emery

Just How Similar Must Competing Marks Be to Survive Dismissal?

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After a de novo review, the US Court of Appeals for the Sixth Circuit affirmed in part and reversed in part a district court’s motion to dismiss, finding the competing marks sufficiently similar to avoid dismissal, and the...more

McDermott Will & Emery

Watermelon Sugar: Candy Shape and Color Deemed Functional

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The US Court of Appeals for the Third Circuit upheld a district court’s decision that a candymaker cannot trademark the shape and colors of watermelon candy, finding that the combined colors and shape of the candy are...more

Ladas & Parry LLP

TTAB Confirms that Building Design Marks Lack of Distinctiveness

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In In re Palacio Del Rio Inc (Serial Nos 88412764 and 88437801), the Trademark Trial and Appeal Board (TTAB) has issued an opinion affirming the refusal of two building design mark applications by Palacio Del Rio Inc (PDR) –...more

McDermott Will & Emery

On the Road Again: Alternative Designs May Impact Trade Dress Functionality Analysis

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The US Court of Appeals for the Sixth Circuit reversed and remanded a summary judgment ruling, finding that there were genuine disputes of material fact regarding whether the plaintiff’s alleged trade dress was functional and...more

McDermott Will & Emery

Functionality Dooms Alleged Trade Dress Protection

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The US Court of Appeals for the Eighth Circuit affirmed summary judgment of noninfringement in a trade dress suit, finding that the trade dress was functional and the attorneys’ fee award—as diminished by the district...more

McDermott Will & Emery

Supreme Court to Consider First Amendment Protection for Parody Dog Toy

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The Supreme Court of the United States has agreed to consider the scope of protection afforded by the First Amendment to commercial parody products that feature the unauthorized use of another party’s trademark(s). Jack...more

McDermott Will & Emery

Half-Baked Case: No Misappropriation or False Advertising Given Over-Broad Allegations

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The US Court of Appeals for the Tenth Circuit affirmed a district court’s grant of summary judgment in favor of a defendant baker on a trade dress infringement claim and reversed the district court’s denial of the defendant...more

McDermott Will & Emery

Colorful Non-Functionality Argument Misses the (Design) Mark

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Addressing the functionality of colors in design marks, the US Court of Appeals for the Second Circuit reversed the district court’s entry of judgment for a trademark owner on its unfair competition and trademark claims,...more

McDermott Will & Emery

There’s No Sugarcoating It: Pocky’s Cookie Design Trade Dress Is Functional

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Addressing for the second time whether the design of a chocolate-dipped, stick-shaped cookie was eligible for trade dress protection, the US Court of Appeals for the Third Circuit held again that the product configuration was...more

Jones Day

JONES DAY TALKS®: Women in IP: 2020 in Review and a Look Toward 2021

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Jones Day's Meredith Wilkes and Anna Raimer discuss 2020's most significant developments in trademark law and preview what's to come in 2021, including possible progress in Washington on the highly anticipated Trademark...more

McDermott Will & Emery

Sticky Situation? Circumstantial Evidence Can Support Intent to Confuse in Trade Dress Claims

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The US Court of Appeals for the 11th Circuit reversed a district court’s grant of summary judgment for the defendant on trade dress infringement and trade dress dilution claims, finding that evidence relating to the...more

McDermott Will & Emery

Cookie Trade Dress Infringement Case Crumbles in Face of Functionality Challenge

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The US Court of Appeals for the Third Circuit found that trade dress protection did not extend to the design of a chocolate-dipped, stick-shaped cookie, because the product configuration was useful. Ezaki Glico Kabushiki...more

McDermott Will & Emery

Knock It Off, Knockoffs? Ninth Circuit Affirms Trade Dress Rights but Not Fame

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Taking on issues of functionality and fame relating to trade dress rights, the US Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the district court’s judgment after a jury trial on claims of...more

McDermott Will & Emery

Grill Trademark Dispute Is Overdone, but Contract Battle Sizzles On

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Addressing—for the second time—the ownership of certain trademarks after sale of the relevant business, the US Court of Appeals for the Fifth Circuit concluded that the trademarks and goodwill associated with a single...more

Akin Gump Strauss Hauer & Feld LLP

The Federal Circuit Vacates and Remands An International Trade Commission Final Determination in A Trademark-Based Investigation

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• The Federal Circuit issued a rare precedential decision in an appeal from a trademark- and trade dress-based ITC investigation. • In its decision, the Federal Circuit reiterated that the act of trademark registration does...more

Dorsey & Whitney LLP

Federal Circuit Kicks Chuck Taylor Case Back to ITC

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In the latest chapter of a long-running trademark dispute involving the outsole used by Converse, Inc. with its well-known CHUCK TAYLOR shoes, the U.S. Court of Appeals for the Federal Circuit has issued a ruling vacating an...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

MarkIt to Market® - September 2018: When the Other Shoe Drops – Keep Calm and (Trade) Dress Up

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Design patents are often the go-to option for protecting the visual features, or design, of a product. But design patent protection is not always available, such as after the product has been on sale, offered for sale, or...more

McDermott Will & Emery

Is a Color Mark Functional? First, Consider the Alternatives

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The US Court of Appeals for the Ninth Circuit reversed a grant of summary judgment, finding a genuine issue of material fact as to whether the green color of the plaintiff’s earplugs was functional. Moldex-Metric, Inc. v....more

McDermott Will & Emery

Lanham Act Cannot Be Used to Create “Species of Mutant Copyright Law”

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The US Court of Appeals for the Ninth Circuit upheld a district court decision granting summary judgment to a defendant that its use of digital files did not infringe plaintiff’s trademark or trade dress for its CD-Gs...more

Fenwick & West LLP

Litigation Alert: The Ninth Circuit Leaves Pirate Joe’s Saying “Shiver Me Timbers!”

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Late last week, the U.S. Court of Appeals for the Ninth Circuit determined a court had jurisdiction to decide a trademark lawsuit filed by a U.S. grocery store against a Canadian reseller where the products at issue were only...more

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