Two recent cases provide important insights in maximizing the chances of gaining trade dress protection.
Designs are a crucial element to fashion – a design that stands out from the crowd can both make a fashion statement and drive demand. But a successful design is often quickly followed by copying and knockoffs that can dilute and even destroy the success of what was a fashion icon.
Fashion companies look to intellectual property law to protect their designs. Among the available legal protections is trade dress – where the design itself functions as a trademark, distinguishing the product as emanating from one designer or fashion house.
While trade dress can be a powerful form of legal protection, it has rigorous legal requirements, and a company seeking such protection needs to exploit a smart strategy to gain and maintain such protection.
One case, involving a unique design for bikinis, emphasizes the importance of the power of social media to generate recognition, and the importance of maintaining good records of such recognition.The other case, involving handbag designs, shows the importance of both survey evidence and maintaining exclusivity – controlling third party uses of the same or similar designs