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?
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.
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