3Trade 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 … .
4Two Pesos v. Taco Cabana 505 U.S. 763 (1992) Taco Cabana Trade Dress
5Two Pesos v. Taco Cabana 505 U.S. 763 (1992) Findings of the District CourtTaco Cabana has an identifiable trade dressThe trade dress is non-functionalThe trade dress is inherently distinctiveThe trade dress has not acquired secondary meaning
12Functionality When is something “functional”? Essential to the use or purpose of the article, orAffects the cost or quality of the productOverall policy considerationExclusive use of the feature would put competitors at a significant non-reputation-related disadvantage
19Functionality - Summary When is something “functional”?Essential to the use or purpose of the articleAffects the cost or quality of the productFactors to considerExistence of utility patentStatements in advertisingExistence of alternative designsCost of manufacturing