Trademark Functionality and Fashion – Tips for Clients | McDonnell Boehnen Hulbert & Berghoff LLP - JDSupra: "Trademark protection is very important in the fashion industry. The ability to protect certain logos and design features may determine the success of a fashion designer’s business. Thus, it is crucial to understand how to protect your fashion trademarks and trade dress... In the fashion industry,
trademarks or trade dress may include logos, fashion designs, and even color. Trademark law protects marks or design features that are “distinctive.”[1] A mark is determined to be “inherently” distinctive if “[its] intrinsic nature serves to identify a particular source.”[2] Marks that are not inherently distinctive may, however, “acquire” distinctiveness by developing “secondary meaning” in the public mind.[3] “A mark has acquired secondary meaning when, in the minds of the public, the primary significance of a product feature is to identify the source of the product rather than the product itself.”[4]
"A valid and protectable trademark is only infringed if there is a likelihood of consumer confusion with another’s use of a similar mark.[5] Even if a likelihood of confusion is established, a defendant may assert a defense of “functionality” of the mark. Two types of functionality exist: utilitarian functionality and aesthetic functionality. Under the doctrine of utilitarian functionality, a mark is functional if (1) it is “essential to the use or purpose of the article” or (2) if it “affects the cost or quality of the article.”[6] For example, a mark is functional if its features are dictated by the functions to be performed or permit the article to be manufactured at a lower cost.[7]...." (read more at link above)
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