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If You Hate Trademark Law, How Do You Feel About Trade Dress?

By Pamela Jones et al.

All right. I'm teasing you. I know you don't all hate trademark law, and I think some of you who do just don't understand it yet. So I have quite seriously been trying to figure out a way to explain trademark to you better than I have already. Car analogies won't help in this case, so how about a restaurant food fight?

I was remembering a famous trade dress case, Two Pesos v. Taco Cabana, which is the one that helped me to understand the concepts. The Supreme Court's 1992 ruling held that "the protection of trademarks and of trade dress ... serves the same statutory purpose of preventing deception and unfair competition" and that a restaurant could be protected under the Trademark Act of 1946, the Lanham Act, if it was distinctive, without having to prove that the trade dress had secondary meaning. So, what's trade dress? What does secondary meaning mean? I'll show you.

Full post as published by Groklaw on October 12, 2008 (boomark / email).