Trademark Product Appearance Features, United States and Foreign Protection Evolution: A Need for Clarification and Harmonization

Abstract

Trademark law has recently undergone a significant evolution both nationally and internationally. In the United States this change resulted from fundamental case law developments, while the creation and establishment of international agreements sparked the international evolution. Trade dress protection also experienced significant change, both in the United States and internationally. This Article focuses on the appearance aspect of trade dress protection.Trade dress includes both the product's packaging and the product's independent appearance, exemplified by the customized design of the packaging juxtaposed with the product's appearance and surface designs. The line between packaging and product appearance features is not easily drawn. For example, while a bottle is itself a product by way of functioning as a container, it could also be construed, for trade dress purposes, as a package for perfume or liquor.New terms, concepts, and issues surfaced in product appearance trademark protection, which resulted in a general change in the direction of intellectual property law. Questions arise concerning the propriety of using trademark protection alone, or using trademark law in combination with a design patent on the same product appearance. These questions demand an understanding of the relationship between trademark law and other fields of intellectual property, particularly patent law and especially utility and design patents. Another related issue is whether protection arises at the time of product introduction, as would be the case if inherently distinctive product appearance features receive protection, or whether product appearance features must acquire secondary meaning within the traditional parameters of trademark protection.While lawyers and judges review the legal issues, the commercial world, primarily industrial designers, continues to create several varieties of product appearance features in an effort to provide more useful and attractive products. The essence of trademark law creates the inherent overlapping of the legal community and the commercial world, and thus, when developing or amending trademark law, the legal community must consider the industrial designers' perspective.Before analyzing current developments, a brief introduction of basic trademark law terms and concepts is necessary to demonstrate how recent changes in trade dress protection align with prior law. To familiarize the reader with basic trademark concepts, this Article first considers word marks and progresses to product appearance feature marks.