Trade dress is a sub-category of trademarks traditionally reserved for product packaging. However, it can also include product design itself if the design elements claimed are distinctive and allow the consumer to recognize a single source as the producer or seller of the goods. Well known product design cases include high heels with contrasting red soles, iconic electric guitar shapes, and the green color of night-time cold medicines. It is a high bar to clear, as asserting registrable trade dress is stating that consumers will recognize your product as coming from you—and only you—without even seeing your brand name. With this in mind, it should come as little shock that relatively few registrations are granted.
Continue Reading Registers of the Lost Ark Bag Appeal: Cult Gaia’s Unsuccessful Trade Dress Application

The metaverse is a new way to engage with computers through artificial intelligence, widespread connectivity, augmented reality and virtual reality. This raises questions about protection of rights associated with property, including intellectual property and—particularly for retailers—IP rights concerning the provision of goods and services in a “virtual” world.
Continue Reading IP in the Metaverse: An Overview for Retailers in a New Landscape

In a recent case, the Federal Circuit found that, sometimes, threatening a patent infringement action, or entering extensive patent license negotiations prior to filing suit, with a company having a presence in a particular state could subject you to jurisdiction in that state, even if you are located elsewhere.
Continue Reading Forum Shopping: How A Retailer’s Patent-Related Communications May Impact Jurisdiction

Signed into law on December 27, 2020, the Trademark Modernization Act of 2020 (TMA) provides amendments to existing federal trademark law that will assist US retailers and other businesses with branding decisions. Congress passed the TMA as part of the COVID-19 relief and government-funding bill.
Continue Reading How Does the Trademark Modernization Act of 2020 Help You Protect Your Brand?

Nestled midway between Dallas and Austin, Waco, Texas, with a population of around 144,000, is home to the Texas Ranger Hall of Fame and Museum, the Dr. Pepper Museum, Baylor University, and Chip and Joanna Gaines’ Magnolia Market; and it now has one of the busiest courts in the nation for patent infringement cases.
Continue Reading Retailers in Texas Beware – Waco is Open for Business for Patent Cases

Your product development team spent years designing a product, working out every design detail until it is just right. Your company spent significant time and money marketing the product, shoring up a great reputation for the product and the company that stands behind it. Then, a copycat comes along with a knockoff and starts selling a product that looks eerily similar—or even identical—to yours.
Continue Reading Protecting Your Products Using Design Patents in the Era of Copycats

3M Company is a leading manufacturer of N95 respirators. According to 3M, medical workers and public-health professionals consider 3M-branded N95 respirators to be “the gold standard.” Not surprisingly, the COVID-19 pandemic spiked the demand for N95 respirators. 3M ramped up production of its N95 masks as a result, but did not increase the price. Other entities, however, have purportedly offered 3M N95 respirators at prices much higher than 3M’s list prices.
Continue Reading Can Trademark Law Combat Price Gouging? 3M is Testing Theories to Protect its Brand

Trade dress, which includes the total look of a product (size, shape, color) is registrable as a trademark if, like a trademark, it identifies the source of a product. Thanks to a recent decision, In re Forney Industries Inc., Appeal No. 2019-1073, by the US Federal Circuit Court of Appeals (Federal Circuit), it may now be easier for businesses to obtain federal trademark registration for some color-based product packaging trade dress.
Continue Reading Your Color-Based Product Packaging Mark Might Be Protectable Trade Dress

Trademarks allow businesses to protect brand names and logos used on their goods and/or services. Unlike other IP, rights in a registered trademark can last indefinitely as long as the mark is in continuous use and all the required maintenance documents are filed. Failure to file such documents results in the cancellation of the trademark registration. Once canceled, the mark can still be re-applied for by the original owner and, in certain instances, another enterprising business. Specifically, assuming the mark has been legally abandoned, the other enterprising business can file its own trademark registration application for the mark. A recent case from the Trademark Trial and Appeal Board (TTAB) illustrates how the original owner can still have standing to oppose another business’s registration of a mark that’s remained dormant for over a decade.
Continue Reading A Pulse Found in “Dead” Trademark Rights