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 Trade Dress
The goal in a trade dress case is twofold. The first goal is to determine whether the similarity in appearance of two products confuses consumers; the second goal to evaluate potential economic loss. When a particular feature of a product is important, it drives sales. The cost of development of that feature, in this case it’s appearance and functionality, is protected.
When the trade dress issue itself is contested, then the question is whether a potential customer is confused when he sees the products. If the consumer, when presented with a product and its facsimile, cannot differentiate between the two as to manufacturer, then confusion exists in the marketplace and sales are likely lost to the Doppelganger product. A carefully crafted experiment by one of our trade dress experts is needed to ensure that the products are properly displayed, compared, and presented to the population most likely to purchase the product. From the results of the trade dress experiment, lost sales and revenues can be projected.
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Case Examples:
Trade Dress, in the production of sound boards for the middle market. A company produced sound boards for musical productions, recording, and other applications, with a primary market of small show venues, churches, and home recording studios. The sound boards had a distinctive and easily recognizable look and sales comprised a significant portion of the middle market. A European company re-engineered the boards, copying even the knobs and knob placement of the product, and entered the U.S. market. The test conducted found potential knowledgeable customers for the product and physically showed the product and its facsimile to the customer to ascertain whether there was confusion as to who the manufacturer was. As this was a specialized product, intercept studies (waiting for the customer to come to you) would not work – a multi-frame survey was required to ascertain the market for the product and to find respondents who would be considered potential customers. Confusion was established in the market for the plaintiff, the European company was prohibited from selling its product in the U.S., and lost profits were awarded to the plaintiff.
Trade Dress, in the manufacture of sporting goods. Two products with very similar patterns woven into the cloth, were offered on the market. The original manufacturer filed suit and was able to demonstrate through experiment and other means that the patterns were perceived as identical by consumers. The pattern in the weave did not contribute to the functionality of the product and so a trade dress violation was determined. The defendant settled, with the plaintiff satisfied with the outcome.
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