Can trade dress be protected from infringement?
Most trade dress is protected without registration. To sue for infringement of trade dress, you must be able to articulate and prove that your trade dress is inherently distinctive, or has acquired secondary meaning, and that the junior use is likely to cause consumer confusion.
What are the remedies available against infringement of trademark?
The relief which a court may usually grant in a suit for infringement or passing off includes permanent and interim injunction, damages or account of profits, delivery of the infringing goods for destruction and cost of the legal proceedings. The order of interim injunction may be passed ex parte or after notice.
What is trade dress infringement?
Trade Dress Infringement, then, is a junior company’s copying of a senior’s Trade Dress in such a way as to cause consumer confusion as to the source of goods/services.
How is trade dress enforced?
Trade dress is the characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. In the United States, the Lanham Act protects trade dress if it serves the same source-identifying function as a trademark.
Can trade dress be protected if not registered with Uspto?
Trademark protection was granted for the lay out and design of its retail stores. Trade dress is a type of a trademark. Therefore, it follows that if trade dress is not registered, it is still protectable under the Lanham Act, as long as the trade dress owner can show distinctiveness and that it is nonfunctional.
How do you prove a trade dress?
In order to demonstrate secondary meaning, also known as acquired distinctiveness, the plaintiff should show:
- Long use of the trade dress in commerce,
- Examples of media coverage,
- Consumer surveys and testimony demonstrating that consumers recognize the trade dress as belonging to the owner, and.
- Advertising expenditures.
What is the penalty for infringement of trademark?
Imprisonment for a period not less than six months that may extend to three years. A fine that is not less than Rs 50,000 that may extend to Rs 2 lakh.
Does trade dress require secondary meaning?
Product design trade dress is never inherently distinctive, and therefor requires proof of secondary meaning.
How long does trade dress protection last?
Federal trade dress registrations last for 10 years and can be renewed for another 10 years upon expiring. Companies can also register their trade dress on a state level. The average cost of a trade dress registration is $673.
What happens if you violate a trademark?
When infringement occurs, a trademark owner (the plaintiff) may file a lawsuit against the infringing user of the same or similar mark (the defendant) to prevent further use of the mark and collect money damages for the wrongful use.
Is trade dress protected under Lanham Act?
The Lanham Act protects trade dress if it serves the same source-identifying function as a trademark. It is possible to register trade dress as a trademark, but for practical reasons most trade dress and product configurations are protected without registration under 15 U.S.C. ยง 1125(a).
What are the remedies for trade dress infringement?
In the event that a court finds that trade dress infringement has occurred, it has several remedies at its disposal: 1 Injunction. When a court issues an injunction in a trade dress case, it enjoins, or stops, a company with a court order from continuing to use the trade dress in 2 Monetary relief. 3 Attorneys’ fees.
What are the damages in a trade dress infringement case?
The court also awarded treble damages for a total of over $10 million and about $880,000 in attorneys’ fees and expenses. If you need help with a trade dress infringement claim, you can post your question or concern on UpCounsel’s marketplace.
How do I protect my trade dress in federal court?
Just like trademarks and patents, companies can register their trade dress with the United States Patent and Trademark Office, (USPTO). Doing so allows companies to protect their trade dress in federal court from infringement.
What are the civil remedies for trademark infringement?
The Trade Marks Act, 1999 lays down certain civil remedies to be given to the ones whose trademark has been infringed. They are: Injunction or authoritative direction by the court of law is a common civil remedy that can be provided with. The two kinds of injunction that can be granted are perpetual and temporary injunction.