INTA Bulletin

November 1, 2013 Vol. 68 No. 20 Back to Bulletin Main Page

How Far Is Too Far When It Comes to Trade Dress?

A company may introduce or develop a new type of food or beverage product with the potential for long-term substantial sales and package it in a unique, distinctive manner to gain market recognition. Food and beverage producers often look to adopt packaging which is easily recognized and remembered, and that communicates the desired message to consumers.”

“A retailer, meanwhile, often feels strong pressure to produce a competing product under its house brand.… To communicate the comparability of the house-branded product to the consumer, the retailer often looks for a ‘trigger’ in the form of similar packaging or labeling to evoke the branded product in the consumer’s mind.”

“For a retailer developing a product designed to trigger in the consumer’s mind a leading branded product, there will be the natural concern whether the house-branded product does more than simply evoke the branded product: does it cross the line and violate the rights of the manufacturer of the branded product? For the manufacturer, the issue will be the same. The question is where is the line between permissible ‘calling’ to mind of the branded product and impermissible infringement?”

For answers, see “Trade Dress in the Food and Beverage Industries,” the source of these excerpts, written by Mark Hiddleston, Elkington and Fife, LLP, London and Richard Young, Quarles & Brady LLP, Chicago, in INTA’s Industry Perspectives series, an exclusive member service that provides background on legal concepts for both attorneys and corporate executives within the context of business applications.

Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.

© 2013 International Trademark Association