Trade Dress Protection Lanham Act § 43(a) –Any person who shall affix, apply, … or use in connection with any goods or services … a false designation of origin …, and shall cause such goods or services to enter into commerce … shall be liable to a civil action ….
Two Pesos v. Taco Cabana 505 U.S. 763 (1992) Taco Cabana Trade Dress
Two Pesos v. Taco Cabana 505 U.S. 763 (1992) Findings of the District Court –Taco Cabana has an identifiable trade dress –The trade dress is non-functional –The trade dress is inherently distinctive –The trade dress has not acquired secondary meaning
Functionality When is something functional? –Essential to the use or purpose of the article, or –Affects the cost or quality of the product Overall policy consideration –Exclusive use of the feature would put competitors at a significant non-reputation- related disadvantage
Functionality - Summary When is something functional? –Essential to the use or purpose of the article –Affects the cost or quality of the product Factors to consider –Existence of utility patent –Statements in advertising –Existence of alternative designs –Cost of manufacturing