A sticky mess: Pocky ruling further splits the circuits

The Court of Appeals for the Third Circuit's finding that Pocky chocolate-dipped sticks are ineligible for trade dress protection could herald the end of trade dress claims within the circuit. Julia Anne Matheson of Potomac Law reports.

Last week, the Court of Appeals for the Third Circuit issued a simplistic decision on product configuration trade dress that, if adopted, could effectively eliminate most trade dress claims within that circuit. The Third Circuit’s decision is troubling on multiple levels. 

Although plaintiff’s trade dress in a partially chocolate-dipped cookie stick was the subject of two incontestable federal registrations, the court affirmed (on summary judgment) that plaintiff’s trade dress was useful and therefore functional without any consideration of competitive alternatives.

That the decision was reached on summary judgment is notable as the case involves one of the most nuanced and challenging areas of trademark law—the intersection of patent and trademark law.