copyright question

Dear Doc:

I have heard that there is something called “trade dress” that can be legally protected, and that it’s different from trade mark and also from design patent and copyright?  What gives?

Sam Sung

Dear Sam:

Trade dress is pretty broadly defined as the visual impression created by the sum of all elements used in packaging or presenting a good or service for sale, and which gives the product or service a distinctive and recognizable appearance to the purchaser. Some trade dress may even become so associated with the product and its producer that it acquires “secondary meaning” entitling it to registration as a trade mark.

You’ve no-doubt seen trade dress in stores: as you wander down the detergent aisle, if you see a bright orange box or bottle, you probably think, “TIDE”. If you see ceramic items that are light blue with white accents, you may think, “Wedgewood”, and if you see a soda bottle with a narrow “wasp waist” you may recognize it as Coca Cola. Each of these is the products’ trade dress.

In order to be protected as trade dress, the elements must be recognizable as denoting the product or its source, and must be non-functional (that is, aesthetic).  Thus, the color blue for certain little pills for men is protected, as is the shape and appearance of the Ferrari 365 GTB/4 sports car.

In a very recent case, Apple, Inc. prevailed over a certain Korean electronics company when the jury found that Apple’s iPhone trade dress had been infringed. The amount of damages awarded was many hundreds of millions of dollars. The Korean company has just filed a motion to have that verdict overturned by the judge. The motion says that the overall appearance of the Apple iPhone and its packaging is not trade dress because its function is simply to be beautiful. They claimed that the iPhone was thus unprotectable because it has “aesthetic functionality”.  They cited testimony that customers, “lust after the [iPhone] because it’s so gorgeous.”

Where will this end up? Who knows? Certainly not the Doc!  But one thing is certain…if trade dress, like design patents and copyrights, protects things that are nonfunctional, and a court finds that being beautiful is a function, then the Doc is going to have to go back to his college aesthetics professor and demand his money back!

— Lawrence Husick, Esq.