What Is Trade Dress Law?
In the April issue, I wrote a column, “Copyright Litigation Over TV Commercials and Infomercials,” about the legal protections provided by the United States Copyright Act for creative works such as DRTV spots and infomercials. I explained how, when one is faced with a knockoff but regrettably one lacks “hard IP” protection; i.e., a patent, one nevertheless, can win in court. What’s more, in the right case, one can win millions of dollars in damages by using copyright law, the patent law’s lesser known, but not to be underestimated, “soft IP” step-sibling. Too many people in our industry focus on patents, or on the lack thereof, when faced with a competitor with a knockoff, and don’t think enough about their “soft IP” rights, such as their copyrights. In this column, I will address another equally powerful non-patent remedy for dealing with a knockoff: trade dress law. In the absence of a patent, trademark or copyright that has been infringed, a knockoff lawsuit likely is going to invok
