Trade dress is the totality of elements that comprises how a product or service is packaged or presented. These elements combine to create the entire visual image that is presented to the consumer and in some instances is capable of acquiring exclusive legal rights, much like the way a trademark obtains legal rights as an identifying symbol of the origin of the goods or services.
The key to obtaining legal protection as a trade dress is using the entire trade dress or packaging in a way where it denotes product source. A product feature whose only impact is decorative, without any source identifying role cannot obtain the legal protection of trade dress law.
To determine trade dress infringement and therefore to find unfair competition, the court must consider the total image or overall impression of the plaintiff’s product, package and advertising and compare this with the corresponding image or impression of the defendant’s product. Like in trademark law and finding of trademark infringement, if the defendant’s trade dress or packaging is likely to cause confusion with that of the plaintiff’s first use of their trade dress the court can find unfair competition and issue an injunction to prevent confusion among consumers.
Robert G. Klein, Esq. is a Los Angeles trademark attorney and a Los Angeles business lawyer who specializes in trademark infringement, copyright infringement, and unfair competition. He feels it is important to hire a Los Angeles trademark lawyer and a Los Angeles business lawyer if one is involved in litigation in that locale. Robert G. Klein is a prominent Los Angeles business attorney and is available for consultation on matters involving trademark infringement, copyright infringement, and business law matters. He has successfully obtained many multi-million dollar jury verdicts. Many of Mr. Klein’s court decisions have been published as case authority and he has appeared before the United States Supreme Court for oral argument. Mr. Klein has also published “Consumer List: Trade Secret or Fair Game?”, which is an article published in the Los Angeles Lawyer Magazine. Los Angeles trademark infringement attorney Robert G. Klein can be reached at (213) 996-8508 or visit our web site at http://www.kleinlitigation.com
