Dior files application to register the trade dress of signature hand bag.

Dior files application to register the trade dress of signature hand bag.

Trademark law is intended to prevent consumer confusion. Trademark users are granted the exclusive right to use a trademark on their products to prevent consumers from being tricked into purchasing products produced by a different manufacturer.  Trademark law in the United States grants a trademark user certain rights when the trademark is first used to brand products sold in commerce.  A trademark can be registered with the United States Patent and Trademark Office to strengthen the rights associated with the the trademark. However, using a trademark to brand products that are sold to the public is the event that gives a trademark user a claim to the trademark.

If someone other than the owner of a trademark uses trademark in a way that leads to consumer confusion, that can be considered trademark infringement. A trademark owner can sue to stop trademark infringement with an injunction and to get monetary damages for trademark infringement which has occurred.

In addition to registering a trademark itself, a company can also register the trade dress of a product.  Trade dress constitutes a “symbol” or “device” within the meaning of §2 of the Trademark Act, 15 U.S.C. §1052.  Trade dress originally included only the packaging or “dressing” of a product, but in recent years has been expanded to encompass the design of a product.  The main difference between a trademark and trade dress is: a trademark includes the logo and name, while trade dress covers the image and design of a product and its packaging. Trade dress is usually defined as the “total image and overall appearance” of a product, or the totality of the elements, and “may include features such as size, shape, color or color combinations, texture, graphics.”

The reason trade dress is important is that competitors will frequently try to mimic the look and feel of a popular product to pass off the competitor’s product.  The competitor hopes that if their product looks enough like a superior product, consumers will be enticed into purchasing the competitor’s product because of the similarities in the packaging.  For that reason the trade dress of a product can also be registered with the USPTO.

Before filing an application to register trade dress, it is in the applicant’s best interest to collect all the evidence they need to complete the trade dress application.  the United States Patent and Trademark Office must see a clear acquired distinctiveness to protect the trademark.  Trade dress registration is based on the applicant’s claim that the total image of its goods or services is distinctive to that company.

A touchstone example of an application to register the trade dress of a product is Application number 88,831,789 filed by CHRISTIAN DIOR COUTURE for their Saddle Bag shaped hand bag.  The application seeks to trademark the shape of Dior’s signature saddle bag.  An example of the product is reproduced above on the left. The drawing included in the trademark application is included on the right.

The application was filed March 12th 2020, but the handbag has bee sold by Dior since the design was created in 1999.  Details in the application are sparse, and the application was filed as an intent to use rather than an actual use application.  One must assume this is part of a broader strategy to capture the broadest possible rights for Dior.  It will be instructional to follow this application as it moves through the trademark registration process.

If you have questions or comments for the authors of this blog please email us at: admin@uspatentlaw.cn