Everything you ever needed to know about trade dress

Abstract

‘A book may be good for nothing; or there may be only one thing in it worth knowing; are we to read it all through?’ (Samuel Johnson) This section is dedicated to the review of ideas, articles, books, films and other media. It will include replies (and rejoinders) to articles, the evaluation of new ideas or proposals, and reviews of books and articles both directly and indirectly related to intellectual property law. At the outset the authors, Gambino and Bartow, explain the US concept of trade dress, which ‘refers to the overall appearance and image in the market place of a product of commercial enterprise’ and is afforded federal protection similar to, but not the same as, that of trade marks. Trade dress is a relatively new concept, which first arose in the 1950s only to become dormant and then later to be revived in Two Pesos1 around a decade ago. It has evolved considerably since then, and continues to evolve as the courts are presented with more trade dress cases. The authors are clear that trade dress is here to stay and even that ‘there is no doubt that trade dress litigation will soon become a major competitor to patent litigation as a means of resolving disputes’. As trade dress litigation is considerably less expensive than patent litigation, the authors are of the view that trade dress litigation is an alternative with which practitioners should be familiarising themselves.