KYTan / Shutterstock.com
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.
The rest of this article is locked for subscribers only. Please login to continue reading.
If you don't have a login, you will need to purchase a subscription to gain access to this article, including all our online content. Please use this link and follow the steps.
To request a FREE 2-week trial subscription, use the same link but select the 'trial' option in the dropdown box. NOTE - this can take up to 48hrs to be approved.
For multi-user price options, or to check if your company has an existing subscription to us that we can add you to for FREE, please email Atif Choudhury at email@example.com
Pocky, Court of Appeals, trade dress, plaintiff, novel, patent, trademark law, US Supreme Court, innovation, fair competition, summary judgment