Intellectual Property Law

Trade Dress Complaint Bounced For Failure To Allege Factus of Non-Functionality

By Marty Schwimmer

Via Loeb and Loeb: Do Denim v Fried Denim:

Although Plaintiff's opposition papers contain various generalized assertions about the nature of the jeans industry and the extent to which jeans designers rely on back-pocket-embroidered designs that may or may not be similar ot the Dragon Design, the Amended Compaint itself contains no factual allegation as to whether protecting the Dragon Design in the manner contemplated by the Plaintiff would put competitors at a significant non-reputation-related disadvantage.

Any suggestions as to how you would plead that back pocket embroidery is non-functional in a specific non-conclusory manner? "The stuff stays in the pocket regardless"?

HT: DD

Full post as published by Trademark Blog on June 26, 2009 (boomark / email).