A reminder from the Third Circuit that trade dress, one of the least understood areas of intellectual property law, is not a catch-all to be used against competitors. Trade dress protects the decorative appearance of an object’s packaging or appearance, insofar as they signify the source of a product to consumers.
But this protection is only available for non-functional design elements. It cannot be used to stop competitors from putting out a similar competing product that has the same functionality. Patents protect functional design elements, and only last for a limited period of time.
So when the makers of Pocky, the dipped cookie sticks, sued the makers of Pepero, the Third Circuit ruled against them. Trade dress cannot protect useful features, like how a cookie is designed to be easy to eat as a snack. That’s good news for anyone looking for options when it comes to snack time.
Intellectual property can be complicated and technical. If you have any questions related to your own IP, contact the Law Firm of Dillon McCarthy.