Fighting Fakes

Protected By Law

Laws protecting intellectual property are designed to enable creators to enjoy the fruits of their labors. Patents protect inventions, copyrights protect literary and artistic materials, while trademarks protect names and symbols that represent a product or service-provided the trademark owner actually uses the mark.

Trade dress, a more subtle concept, essentially means it's illegal to copy the way a competitor's product looks if doing so is likely to confuse consumers. The term doesn't even appear in the Lanham Act, the federal law that became the basis for most copyright and trademark laws. The Lanham Act makes it illegal to use any "false description or representation" in connection with products or their containers.

Courts have interpreted this provision to mean that companies may not copy the "total image" of a competitor's product-the pattern of size, shape, color, texture or graphics-especially when the public associates that particular image with a certain product and is likely to be confused when the image appears on a competing product.

While patents and copyrights expire after a given number of years, trademarks never expire. Neither does a product's trade dress, if it's sufficiently distinctive. In some cases, however, it's difficult to distinguish a product's trade dress from the product itself-which means newcomers may never be able to enter the field without infringing on rights that don't expire. For instance, under copyright law, Mickey Mouse would have entered public domain in 2002, so anyone could profit from the image. However, the Disney Co. convinced a court that Mickey Mouse was a company trademark, so unless the law changes, Mickey will always belong to the company.

Courts have developed certain standards for determining when a product's style is protected by law. First, the trade dress must be inherently distinctive, so customers think of the company in question when they see that design. Common, basic shapes aren't enough. The more distinctive the shapes, colors and designs, the more defensible the trade dress.

Second, the trade dress cannot be part of the function of the product, such as a waffle weave on a paper towel that makes the towel more absorbent or a foil wrapper that keeps an ice cream bar from melting.

Finally, courts consider the likelihood of confusion. They look at the infringer's intent and the similarity of products, designs, target markets, retail outlets and advertising media.

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This article was originally published in the February 1996 print edition of Entrepreneur with the headline: Fighting Fakes.

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