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Frequently Asked Questions

What are the three steps involved in proving trade dress infringement under the Lanham Act?

Proving trade dress infringement under the Lanham Act involves three crucial steps. The first step is to demonstrate that the trade dress is not primarily functional. This means that the design or feature in question is not essential for the product's use or purpose, but rather serves to distinguish and promote the product or service. For instance, the unique shape of a Coca-Cola bottle is not functional, but it is distinctive and identifies the product, hence it can be protected by trade dress. The second step is to show that the trade dress is inherently distinctive or has acquired distinctiveness through a secondary meaning. In other words, the trade dress must be unique or must have gained recognition in the market as being associated with a particular product or service. This distinctiveness can be inherent, such as a unique packaging design, or can be acquired over time through consistent use and consumer recognition. The third and final step is to prove that there is a likelihood of confusion among customers. This means that if other products or services use your trade dress, customers might mistake them for your product or service. This confusion can lead to a loss of business and damage to your brand's reputation. Therefore, it is crucial to demonstrate that the use of your trade dress by others could lead to such confusion.
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