Dressing Down Trade Dress: A Return to Basics for the Distinctiveness Requirement

This article examines how courts have analyzed protection of a product’s “look and feel” in recent years. To insure competitive fairness, trade dress protection should value a product’s distinctive features. The current framework, however, has proven confusing and unpredictable. Recent trends are the equivalent of a poorly struck drive landing in six inches of rough far off the fairway. We should safely chip back onto the fairway and turn to a clear standard for trade dress, predictable for business owners, which asks: whether consumers identify this product based on features claimed as trade dress. For example, will prospective purchasers of a shiny new titanium driver assume a gray metallic finish and black “V” on top indicate the club came from CALLAWAY? For any savvy golfer it would, and the distinctiveness inquiry must firmly rest upon this kind of likely response. This simpler approach would protect consumers and insure predictability.