How is the Trade Dress Infringement claimed?
Remedies for infringement of trade dress can either be obtained by applying the common law or by applying the statute law. To qualify for protection, the dress must be non-functional (to avoid conflict with the patent laws) and, like a trademark, must serve the purpose of denoting the source of the product. For trade dress infringement a plaintiff must prove by a preponderance of the evidence: (1) that its trade dress has obtained “secondary meaning” in the marketplace; (2) that the trade dress of the two competing products is confusingly similar; and (3) that the appropriated features of the trade dress are primarily nonfunctional. “Secondary meaning” refers to evidence that, upon seeing a name, book series title or in this case, a packaging, the public has come to believe that the product related to such name, series title or packaging comes from a particular manufacturer (publisher etc.) and that a similar use by another would create a likelihood of confusion in the minds of the pub
