Trade Dress: Its Not Just How You Look!
John Wilson • June 1, 2019
Trade Dress & the Promotion of a Product or Service
Trade dress protection, like trademarks, was born out of the realm of unfair competition: that no person should be able to trade off the goodwill of another. Accordingly, an inherently distinctive trade dress can be registered as a federal trademark under the Trademark Act, affording a trade dress registrant a wealth of protection against imitating products. For a product, trade dress may be the packaging, the promotional displays, and even the shape or coloring of a product. For a service, it may be the presenting of the building facade, the interior decor, or even the environment in which a service is provided. Our Dallas trademark and trade dress attorneys can assist you in protecting your trade dress. For more information on trade dress, see our Trade Dress Practice
web page.
What Is Trade Dress?
Trade dress is the public commercial "look and feel" of a product or service, is source identifying, and distinguishes the product or service from others. It can include a wide array of components, such as color, size, design, shape and material used to package a product or offer services. Trade dress law and patent law occasionally can overlap as certain design configurations and shapes of a product may be both a trade dress and a potential deign patent.
Trade Dress Must Be Distinctive
For trade dress to be considered inherently distinctive, a court will require that a trade dress meet a level of distinctiveness. That it “must be unusual and memorable, conceptually separable from the product, and likely to serve primarily as a designator of origin of the product.” Duraco Products Inc. v. Joy Plastic Enterprises Ltd., 40 F.3d 1431 (3d Cir. 1994). Distinctiveness is the threshold for determining whether a product is capable of serving as a trade dress (i.e., capable of identifying a particular source). See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). A product that is immediately capable of identifying a particular source is considered an “inherently distinctive” trade dress; however, a product that is not “inherently distinctive” can still be considered a trade dress if it has developed a secondary meaning, which occurs when, “in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851 (1982).
In 2000, the United States Supreme Court in Wal-Mart Stores, Inc. v. Samara Bros., Inc., was presented the issue of whether a product design was capable of being inherently distinctive. Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000). In that case, Samara Brothers – a children’s clothing designer and manufacturer – sued Wal-Mart for allegedly selling “knockoff” copies of their clothes. The clothes at issue were not federally-registered trade dresses. The Supreme Court held that a product design could not be inherently distinctive; and, therefore, may only be protectable as a trade dress if it has acquired secondary meaning. To show secondary meaning in trade dress, one must show that in the public mind, the primary significance of the product feature is to identify the source of the product. The Supreme Court reasoned that a product’s design generally serves no purpose for source identification – the primary basis for providing trade dress protection. On the other hand, a product’s packaging (i.e., the overall look of the product, including color, shape, labels, etc.) may be protectable as a trade dress because it is capable of identifying the source of the product.
Functional Aspects Alone Do Not Qualify As A Trade Dress
Functional aspects of trade dress cannot be protected under trademark law. For instance, a package or product shape can lack protection as being “generic” if the trade dress is defined as a mere product function or is such a common design that it cannot identify any particular source. Accordingly, courts have routinely struck down common product configurations or themes (e.g., a grape leaf on a wine bottle) as generic and incapable of protection as a trade dress. See Stuart Spector Designs, Ltd. V. Fender Musical Instruments Corp., 94 U.S.P.Q.2d 1549 (T.T.A.B. 2009) (“the evidence overwhelmingly demonstrates that these configurations are so common in the industry that they cannot identify source.”); see also Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619 (6th Cir. 2002) (holding no designer can hold a monopoly on designs regarded by the public as the basic form of a particular item).
What Is Trade Dress Dilution?
In addition to a claim of trade dress, courts will allow claims to be made for trade dress dilution pursuant to Section 43(c) of the Lanham Act. 15 U.S.C. § 1125(c). Dilution is legal concept designed to protect against the weakening or reduction in the ability of a mark to clearly distinguish only one source. Dilution often comes by way of “tarnishment." Tarnishment is the degrading of the reputation of the mark through negative associations
or by impairing the distinctiveness of the brand by blurring that brand with a knock-off design.
Female Divorce Attorneys in the Dallas-Fort Worth Area In many instances, divorce cases are challenging and emotionally taxing experiences. For this reason, it’s common for people to prefer working with an attorney of the same gender because they feel as though the attorney can empathize and understand their situation more. At the end of the day, the gender of your attorney may not affect the outcome of your case, but it’s important to feel as comfortable as possible while navigating through the process. At Wilson Whitaker Rynell, our experienced female divorce attorneys offer compassionate and empathetic approaches while they develop a comprehensive legal strategy to represent you. Why Should You Choose a Female Divorce Lawyer? There are many reasons why hiring a female divorce attorney can help you throughout your divorce. For one, they often have experience working on issues that disproportionately affect women in divorce such as spousal support (alimony), child custody disputes, and asset division. Additionally, female divorce lawyers offer a unique level of empathy, understanding, and communication. As a result, many clients feel that they are more approachable and compassionate, which is beneficial when dealing with the emotional turmoil of the process. More importantly, female divorce attorneys are more familiar with how the court treats women in divorce cases and use this knowledge to strategically protect their clients’ interests, whether male or female. Why Our Female Divorce Attorneys May be Right for You At Wilson Whitaker Rynell, our female divorce attorneys are skilled, knowledgeable professionals, they also have many years of experience in handling complex divorce cases. Whether it’s issues surrounding custody of children, alimony, or asset division, our female divorce lawyers ensure each client receives high-quality legal advice. Our firm’s female divorce attorneys provide the highest level of personal attention, ensuring that each client’s unique needs and concerns are addressed through every step. Unique Challenges Women Face in Family Law Disputes in Texas Family law disputes can be emotionally charged and legally complex, especially for women navigating the process in Texas. Women often encounter unique challenges due to their roles in the marriage and family dynamic, particularly when it comes to child custody, child support, and the division of marital assets. Child Custody Challenges In many marriages, women take on the primary caregiving role for their children. However, when it comes to custody decisions, courts in Texas prioritize the best interests of the child over parental gender. While this often works in favor of mothers, women may still face hurdles in proving they are better suited to provide the stable environment the child needs, especially if their ex-spouse disputes custody. Factors such as work schedules, living arrangements, and financial stability can come under scrutiny. Child Support Issues While Texas law allows women to seek child support, collecting these payments can sometimes prove difficult. Women awarded child support may find themselves dealing with ex-spouses who delay payments, make partial payments, or refuse to pay altogether. Enforcing child support orders often requires legal intervention, which can add to the emotional and financial strain. Division of Marital Assets In Texas, a community property state, marital assets are typically divided equitably during divorce. Women who are awarded assets such as the family home may face challenges related to maintaining the property, refinancing a mortgage, or covering associated expenses. Additionally, women who sacrificed their careers to support their spouses or raise children may feel disadvantaged during the division of assets if their earning potential is limited compared to their ex-spouse. How Your Divorce Attorney Will Support You Each divorce case is unique, and having an experienced attorney standing by you is vital. Whether you’re dividing assets, negotiating child custody, or managing other complex legal issues, the female divorce attorneys at Wilson Whitaker Rynell are here to protect the interests of you and your family. Our attorneys will take the time to understand your unique circumstances and empower you to make informed decisions that support your career, family and future. When you choose a female divorce attorney from Wilson Whitaker Rynell, you can trust that they will: Prioritize your family’s best interests. Negotiate with integrity, ensuring fairness and transparency. Clearly explain all your options and their potential outcomes. Help you create the future you want by offering trusted legal advice. Use efficient methods to minimize unnecessary costs and keep the process manageable. Navigating family law disputes requires a thorough understanding of Texas family law and strong advocacy. Women facing divorce or other family law issues are encouraged to seek an experienced family law attorney who can provide personalized guidance. A skilled lawyer can help craft a strategy that protects their rights and ensures a fair resolution. This includes representing their interests in court, negotiating settlements, and helping enforce orders such as child support or spousal maintenance.
Understanding Writs of Execution in Texas: A Layperson’s Guide If a court determines that someone owes money to another party, the debtor—referred to as the "judgment debtor"—typically has 30 days to pay off the debt. If the debt remains unpaid after this time, the creditor, or "judgment creditor," can take legal action to enforce the payment through a Writ of Execution . This legal process, governed by Texas law, enables creditors to collect what they are owed by seizing and selling the debtor’s non-exempt assets. What Is a Writ of Execution? Under Texas Rules of Civil Procedure 629 , a Writ of Execution is a court order that authorizes a sheriff or constable to seize the debtor’s property to satisfy the debt. This writ is an essential tool for creditors when voluntary repayment has not occurred. Once the writ is issued, it is handed over to a county constable or sheriff, who is required to act “without delay” in collecting the debtor’s real and personal property. The seized property is then sold, and the proceeds are used to pay off the debt. If multiple writs are filed against the same debtor, the assets are distributed in the order the writs were received. What Property Can Be Seized Under a Writ of Execution? Texas law is very specific about which types of property can and cannot be seized to satisfy a judgment. Exempt Property Certain assets are protected from seizure under Texas Property Code § 41.001. These include: The debtor’s homestead (primary residence) Wages earned from employment Professionally prescribed health aids Workers’ compensation benefits College savings plans Some insurance benefits Personal property valued up to $50,000 for individuals and $100,000 for families Unique to Texas, the law also protects items like family Bibles, two firearms, pets, and for rural residents, livestock (e.g., 12 head of cattle and 120 fowl). This extensive list reflects Texas's cultural heritage and values. Non-Exempt Property Assets that are generally not exempt include: Vacation homes Timeshares Pleasure boats Airplanes Jewelry exceeding certain value thresholds The specific procedures for seizing different types of property are detailed in Texas Rules of Civil Procedure 639 . Can a Writ of Execution Be Avoided? Judgment debtors have a few options to avoid the execution of a writ: Filing a Supersedeas Bond A supersedeas bond can temporarily halt enforcement of the writ. This bond, filed with the county clerk or justice of the peace, preserves the status quo while the debtor seeks further legal remedies. This option is governed by Texas Rules of Civil Procedure 634 . Challenging the Execution Debtors can file a claim for wrongful execution in situations such as: The debt has already been paid Exempt property is being seized The levy is excessive Additionally, courts take extra care to protect property classified as a homestead under Texas Property Code § 41.002(c) . When only one spouse is responsible for the debt, Texas Family Code § 3.202(a) and related provisions provide guidance on levying against community or separate property. The Role of County Officials in Executing the Writ Once the writ is issued, its enforcement falls on county officials, typically a sheriff or constable. These officials must act in accordance with Civ. Prac. & Rem. Code § 34.072 , which requires them to execute the writ and report back to the court. They must: Give proper notice of the sale of seized property Ensure the proceeds are appropriately delivered to the creditor Avoid overstepping legal boundaries, such as seizing exempt property Failing to execute the writ properly can result in serious consequences, where a sheriff’s refusal to levy on a property initially listed as exempt (but later deemed abandoned) led to court action and damages awarded to the creditor. Preventing Fraudulent Transfers One challenge creditors face is when debtors attempt to hide or transfer assets to avoid collection. To address this, Texas follows the Uniform Fraudulent Transfer Act under Tex. Bus. & Comm. Code § 24.001 et seq .. This act provides legal remedies to creditors when a debtor’s transfer of assets is deemed fraudulent. Effect of a Defendant's Death on Writs of Execution Under Civ. Prac. & Rem. Code § 34.072 , the death of a defendant after a writ of execution is issued halts execution proceedings. However, any lien acquired from the writ's levy is still enforceable by the county court when paying off the deceased's debts. Why Proper Execution Of The Writ Is Crucial The rules for filing and serving a Writ of Execution are strict and detailed. Missteps, such as filing the writ in the wrong county, failing to serve the proper parties, or missing key deadlines, can lead to delays or even render the writ ineffective. Both creditors and debtors must ensure compliance with these rules to avoid unnecessary complications. For creditors, failure to properly enforce the writ could mean losing the opportunity to collect on a judgment. For debtors, not responding appropriately to a writ could result in the loss of valuable assets, even those that might have been exempt.
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The Wilson Legal Group are Dallas attorneys that specializes in Patents, Trademarks, Copyrights, Trade Secrets, Complex Litigation, Business/Corporate Law, Family Law and Real Estate Law. At the Wilson Legal Group, our clients are our focus. Our philosophy is simple and straight-forward: Understand our clients' needs, hopes, and interests in order to help them flourish. Our staff strives to build strong relationships with our clients in order to appreciate their best interests and help them achieve their goals.
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