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Sarah Burstein @design_law
, 6 tweets, 2 min read Read on Twitter
Question: When & how did the law shift from "trade dress is the total look and feel of a product" to "you can claim any visual element(s) of a product design as your trade dress"?
A lot of cases still parrot the old "total image" type language but: (1) either that language was never correct; or (2) something very fundamental has changed.
I'm having trouble finding existing literature on the subject (I suspect because we don't have a good shared vocabulary for what's going on now), so if anyone has recommendations, please LMK
I wonder if this apparent shift is connected (ironically) to the establishment of particularized pleading requirements for product-design trade dress. So any recommendations on that front would be welcome, too.
My other working hypothesis is that there is some kind of patentization going on - firms hire people who are patent-bar eligible, they learn patent-style claiming rules & then apply them in their trademark apps/cases... 🤷‍♀️
We've seen similar shifts (protection from whole to parts) in design patent & copyright law but the reasons seem to be different in all three regimes. And none of those decisions seem to be "conscious decision by legislators."
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