When imitation is the sincerest form of flattery: private label products and the role of intention in determining trade dress infringement
Courts should require direct evidence of the intent to confuse consumers to find trade dress infringement by private label manufacturers under section 43(a) of the Lanham Act because presuming intent may actually harm consumer welfare. The likelihood of confusion test under section 43(a) for trade dress requires that the infringer intended to confuse the consumer, and some courts presume intent to confuse from the intent to copy. Private label trade dress similarity to brand name products is often used to provide consumers with comparative information, and this consumer information should not be restricted.
Publication Name: University of Chicago Law Review
Inherent distinctiveness, product configuration, and "product groups": the developing law of trade dress
The best analysis for identifying products dress, the entire appearance of a product, is to combine a "products groups" criteria and the evidentiary standards formulated in Abercrombie & Fitch Co. v. Hunting World, Inc. along with the evidence requirements developed by Professor Graeme B. Dinwoodie. The US Supreme Court arguably sought such an analysis in its Two Pesos decision. Otherwise, since Congress has not provided a definition of trade dress, courts will continue to formulate varying approaches to important trade dress issues.
Publication Name: The Journal of Corporation Law
Aesthetic functionality in trade dress: post-secondary aesthetic functionality proposed
The author discusses current theories of the protection of trade dress in trademark law and proposes a doctrine that would protect trade dress possessing aesthetically entirely to a secondary meaning.
Publication Name: Commercial Law Journal
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