Functionality in Trade Dress Prosecution and Litigation: Protecting the Look and Feel of Products and Packaging

Trademark law protects trade dress--the nonfunctional look and feel of a product or its packaging that identifies the source of the product to consumers.

IP counsel must understand the requirements for trade dress protection and how Trademark Trial and Appeal Board and federal court decisions treat the prerequisite of nonfunctionality in particular.

Listen as our authoritative panel examines functionality in trade dress law. The panel will discuss recent court treatment and how it has shaped the doctrine of functionality. The panel will examine functionality in the context of trade dress applications and litigation and will offer strategies to optimize trade dress protection and the exclusion of others from using the non-functional/source-identifying features of an owner's trade dress.

• Functionality in trade dress law
  • In trade dress applications
  • In litigation
• Recent court treatment
• Best practices for protecting trade dress and enforcing those rights against infringers

The panel will review these and other key issues:

• What are the lessons from recent decisions finding claimed trade dress either nonfunctional or functional?
• What lessons can be taken from federal court decisions regarding trade dress infringement claims?
• What steps can counsel take to increase their chances of proving nonfunctionality to obtain trade dress protection?
• How does the USPTO address the functionality inquiry?