James Aquilina and Grace Stewart Author Article in The Trademark Lawyer About Trade Dress
Quarles & Brady attorneys James Aquilina and Grace Stewart authored an article in The Trademark Lawyer discussing trade dress as an often-overlooked trademark right. Aquilina, a Washington-based partner, and Stewart, a Madison-based associate, are members of the firm’s Intellectual Property Practice Group.
While most companies focus on traditional trademarks such as logos or phrases, they frequently miss the opportunity to protect trade dress, which can include distinctive colors, patterns or packaging designs.
An excerpt:
The functionality analysis for trade dress begins with the standard trademark functionality analysis, namely, that “if a design enables a product to operate, or improves on a substitute design in some way (such as by making the product cheaper, faster lighter, or stronger), then the design cannot be trademarked.” But even more stringent functionality-related hurdles exist in the specific realm of trade dress, as will be discussed further below.
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Obtaining strong, enforceable trade dress requires planning and intentionality. Brands that wish to register certain visual cues as trademarks should identify these cues at the earliest stages of product development and approach product development with this end goal in mind. This is especially important when dealing with product configuration.