Trade Dress: An Unsuitable Fit for Product Design in the Fashion Industry

Abstract

Fashion design is an uneasy fit for intellectual property law. Because trade dress is not clearly defined in the Lanham Act, the courts were able to expand this area of intellectual property to protect product design in the fashion industry. Congress does not concur with this expansion, as demonstrated by the lack of legislative action in the face of multiple opportunities to grant protection to fashion design.Despite Congressional intent, the courts attempted to fit fashion design into various types of intellectual property law, beginning with copyright and patent. After realizing that neither of those was an appropriate fit for fashion design, the courts settled on trademark law and more specifically trade dress.The Supreme Court leaves product design ambiguous as a trade dress category in Two Pesos. Recognizing its mistake, the Supreme Court then tries to clarify product design in Wal-Mart by distinguishing the trade dress at issue in Wal-Mart from Two Pesos, arguing that Two Pesos actually addressed product packaging while Wal-Mart was a product design issue. The Supreme Court in TrafFix further strengthened its warning from Wal-Mart against trade dress expansion. Nonetheless, the Second Circuit Court of Appeals ignored the Supreme Court’s caution and increased trade dress protection in Louboutin, overstepping its boundaries in a way that Congress, the Supreme Court, and public policy do not support.