Q: does my product qualify under trademark dress
i own a party supply company and have designed paper plate molds so that the shapes become recognizable staples for eid creations. I have been printing all my designs on those shaped plates which cost me a fortune to make. I find out that my competitor has printed on the same plate shape and when I confronted them, they said that plate shapes cannot be a trademark but I heard that a trademark dress does have legal ramification if my company is distinguished by those shapes. I hope I am right as this is causing me loss of sales. Can you please advise if I have a case, and if not what other action can I take?
A:
Trade dress constitutes a “symbol” or “device” within the meaning of §2 of the Trademark Act. It encompasses the “total image and overall appearance” of a product, not just the packaging: the totality of the elements, including size, shape, color or color combinations, texture, and graphics.
If the new competitor's trade dress is confusingly similar, and your usage began first, you have a claim for infringement.
It would be prudent to register the design as a trademark, but even if it is not registered, you can sue for infringement and unfair competition, seeking an injunction and damages. Since the infringement appears to be willful, you may be able to recover exemplary (increased) damages over and above the actual damages (loss of revenue) you can prove.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
