Q: Am I infringing on trademarks, or copyright?
I want to sell a wooden box that is similar to a competitor. It will be pretty built pretty much the same as the competitors. (the box has a base connected to it I want to use in mine). I will use different card designs, stain color, wood, and metal label.
I was told the appearance of a product may be a trademark. The competitor would need to show that their design is a signal to the source of their goods. I am confused on this. I just want to ensure I am able to manufacture my box design and the competitors doesn't have a legitimate case. They are a small etsy shop.
Their exact words:
‘Trademarks & Copyrights?
All of my photographs/designs/concepts are originals. Please do not use my photographs or designs without written permission. All items are trademarked ItsMyDay, Inc. 2009-2018’
More info attached (Copy and paste the whole link)
https://docs.google.com/document/d/16aJo3K2cOAYkESx-Dfu9wvNTEVMDZbZa0k_xuT0Wl_o/edit?usp=sharing
A:
The appearance of a product can be a type of "mark" called a trade dress. Trade dress is concerned with the promotional aspects, or image, of a product or service that makes the presentation of the product or service distinctive. Trade dress does not apply to any aspect that is purely functional. The YETI and RTIC trade dress dispute is my favorite example of this (and also one of the clearest examples of trade dress infringement). https://campingcrossroads.com/yeti-vs-rtic-lawsuit/ The question here is what non-functional aspects of this product are they claiming distinguish their box from someone else's?
From a cursory glance, they have a brown box with a beveled edge around it and a filigree label that says "recipes". It will probably be hard to argue that these elements are distinctive enough to their brand to be trade dress. However, that doesn't mean you're out of the woods on this issue. If you're truly concerned about possible suit, you should consult privately with a trademark attorney.
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