Trade Dress & Trademark Litigation

INSIGHTS ON TRADE DRESS LITIGATION FROM JOEL DELMAN

Insights on trade dress litigation and trademark litigation from a variety of sources, including: Intellectual Property News, Intellectual Property Law Blog, Ipkat, Trademarkology, World Intellectual Property Review, Likelihood of Confusion, and Law 360. If you’d like to chat about anything you see, feel free to reach out or connect with me on LinkedIn.

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Innovation, Technology & Culture
Trade Dress & Trademark Litigation
Jaguar's massive rebranding fail sets cautionary note for heritage brands seeking an updated image
December 4, 2024
joel's thoughts:

It can feel like the brand is turning its back on everything that it stood for — and therefore it feels like its turning its back on us, the people who subscribe to that idea or ideology

“Especially now, with the world feeling so dystopian, a heritage brand like Jaguar should be conveying feelings of safety, stability, and maybe a hint of rebellion — the kind that shakes things up in a good way, not in a way that unsettles.”

Patent Litigation & Intellectual Property
Trade Dress & Trademark Litigation
USPTO Patent Grant Rate and Growing Backlog
December 2, 2024
joel's thoughts:

Recent data points to subtle but noteworthy changes in USPTO practice.

The backlog of unexamined applications has risen sharply in recent years — reaching 804,658 applications in October 2024 which is a concerning increase from approximately 526,000 applications in early 2018.  Pendency and backlog issues reached a crisis point in 2008, but we are now above that high point.

Industrial Design & User Experience
Trade Dress & Trademark Litigation
Innovation, Technology & Culture
Jaguar Changed its Logo, and Nobody is Happy
November 20, 2024
joel's thoughts:

Logo design is not easy. At all. You have to distill the entire essence of an organization down into something instantly identifiable, easily reproducible, appealing, eye-catching.

Jaguar’s new logo – and the associated new brand-image campaign – and look at the reactions it’s inspiring, almost none of which are positive. This is feeling like a logo disaster.

Jaguar making a radical and bold change is absolutely a good thing, don’t get me wrong. The brand has been stagnant for some time now, and in desperate need of some sort of reboot. Sure, they have a fantastic history and a legacy of truly iconic cars, but that doesn’t help them sell new cars, which I’m told carmakers enjoy doing. So the idea that Jaguar needs to make a dramatic change is something I absolutely agree with.

Industrial Design & User Experience
Innovation, Technology & Culture
Trade Dress & Trademark Litigation
Murray McCory Dies; JanSport Founder Created the School Backpack
November 5, 2024
joel's thoughts:

He brought lightweight packs to millions of students, and transformed the way they carried their textbooks to school

Mr. McCory took an existing product, a lightweight, frameless pack used for short hikes, and added a reinforced bottom, nylon zippers and other tweaks to make it campus-friendly. He decided to leave the leather swatch, originally used for lashing poles to the bag, on its back panel — someone might want to attach an umbrella, he figured. Today, the patch, though rarely used, is a signature element of the JanSport look.

Trade Dress & Trademark Litigation
Innovation, Technology & Culture
Best Root Beer Branding Matches Best Root Beer Taste
September 12, 2024
joel's thoughts:

Great branding doesn't always correlate to the best quality in a given product category.

But I'm here to tell you that after extensive comparison testing by my family, the refreshing yet retro look of Frostie root beer was the big winner out of 20+ brands we tasted this summer. I'm a sucker for any great label and cap, but Frostie matches that with the richest, most natural taste out there.

Patent Litigation & Intellectual Property
Trade Dress & Trademark Litigation
What's the verdict post LKQ?
September 11, 2024
joel's thoughts:

(Yeah that's too cute, but I'm going with it...) Recent litigation may shed light on the impact of the decision re: design patent obviousness.

In May, the Federal Circuit eliminated the long-standing test for design patent obviousness. In its place, the Federal Circuit emphasized a flexible approach to the design patent obviousness analysis, grounded in the Graham factors.1 This is a big change in design patent law. So how is LKQ impacting ongoing cases so far?

Industrial Design & User Experience
Trade Dress & Trademark Litigation
Patent Litigation & Intellectual Property
The fascinating story behind patriotic Bomb Pop and Firecracker popsicles
July 31, 2024
joel's thoughts:

As we head into August, it seems like a good time to learn the fascinating design- and trademark litigation - history of America's most powerful frozen treat

The original rocket-shaped but confusingly named Bomb Pop was first invented in 1955 by D.S. “Doc” Abernathy and James S. Merritt, for Kansas City, Missouri's Merritt Foods. The iconic red, white, and blue stack was flavored cherry, lime, and blue raspberry. When Merritt Foods eventually shut down operations in 1991, Bomb Pop manufacturing was sold off to Iowa-based Wells Dairy/Wells Enterprises. The frozen confections are still made today in La Mars, Iowa.

Trade Dress & Trademark Litigation
Innovation, Technology & Culture
New Marvel Logo Looks Just Like Old Marvel Logo
June 25, 2024
joel's thoughts:

For a company built on creativity, this new logo / branding strategy is disappointing at best...

“Marvel,” rendered in a white font encased by a red block, now sits beside “comics” in white-on-black—an inversion of Marvel Studios’ famous black-on-white logo.

Patent Litigation & Intellectual Property
Trade Dress & Trademark Litigation
Federal Circuit Upends Longstanding Design Patent Obviousness Test
June 7, 2024
joel's thoughts:

Upending decades of continuity in the world of design patents, the United States Court of Appeals for the Federal Circuit (“CAFC”), sitting en banc in LKQ Corporation v. GM Global Technology Operations LLC, overturned the Rosen/Durling standard for obviousness of design patents.

In so doing, the CAFC outlined the new framework by which design patent obviousness is to be determined at the United States Patent & Trademark Office (“USPTO”) during examination and post-grant proceedings, as well as during district court litigation involving infringement or invalidity challenges of design patents.

Trade Dress & Trademark Litigation
Patent Litigation & Intellectual Property
Innovation, Technology & Culture
William Post, Pop-Tart Inventor, Dies at 96
March 11, 2024
joel's thoughts:

A bakery manager in Michigan, he worked with Kellogg’s to create the snack which became a timeless American classic.

Not sure how I missed this... Honestly, I'd put the Pop Tart up there in the top 100 products ever. And Jerry Seinfeld is about to come out with a documentary on Pop Tarts, to the extent I needed any support for that opinion:-)

Trade Dress & Trademark Litigation
Can This CEO Save a Sneaker That Lost Its Cool?
January 18, 2024
joel's thoughts:

Can a true master of brand building save Vans? Interesting insights and a fresh approach to learn from

Industrial Design & User Experience
Trade Dress & Trademark Litigation
Patent Litigation & Intellectual Property
If You Love Fonts And Graphic Design, Go To A Classic Car Show
January 9, 2023
joel's thoughts:

Great slideshow about two of my favorite things, old cars and branding... Highly recommended Friday read!

Innovation, Technology & Culture
Trade Dress & Trademark Litigation
Our Merch, Ourselves
November 13, 2023
joel's thoughts:

What do the brands we wear say about us? Interesting thoughts here...

Trade Dress & Trademark Litigation
Patent Litigation & Intellectual Property
The Fine Print: Avoiding IP Pitfalls in Unlicensed Fonts
October 19, 2023
joel's thoughts:

Excellent overview of legal issues related to the use of fonts in graphic and industrial design... Many designers are too casual about this (I was once guilty myself, unintentionally)

Trade Dress & Trademark Litigation
Patent Litigation & Intellectual Property
Candy Shape Indicating Flavor is Functional, Not protectable as Trade Dress
October 16, 2023
joel's thoughts:

Great follow up to last week's post about interior design trade dress... Here's an interesting case which just addressed trade dress functionality for candy shaped like the fruit flavor it represents

Trade Dress & Trademark Litigation
Patent Litigation & Intellectual Property
That dressing room design may be valuable IP...
October 5, 2023
joel's thoughts:

Great article about protecting interior design through trade dress

Industrial Design & User Experience
Trade Dress & Trademark Litigation
How Airstream Became an American Icon
July 12, 2023
joel's thoughts:

Fantastic Friday read about the business behind one of America’s most iconic designs

Trade Dress & Trademark Litigation
Overstock + Bed Bath and Beyond Branding
September 11, 2023
joel's thoughts:

I don’t think this headline overstates the business school case study this rebrand is destined to become…

Patent Litigation & Intellectual Property
Trade Dress & Trademark Litigation
Industrial Design & User Experience
Lululemon's Dupe Strategy
August 18, 2023
joel's thoughts:

Not sure it’s effective from a $$ standpoint, but what a super creative way to deal with design knockoffs…

Trade Dress & Trademark Litigation
Normal vs Weird Branding
August 24, 2023
joel's thoughts:

With all the uncertainty in today’s world, is “safe” branding the way to go?