Partner Laura Ganoza was quoted in the Women’s Wear Daily article, “Fashion Confronts Its Trade Dress Challenge,” about the challenges fashion brands face in securing trade dress protections for their designs following the 2018 decision of the Federal Circuit Court of Appeals in Converse, Inc v ITC. The case looked at what is required to prove that a trademark design has acquired distinctiveness or secondary meaning, and the court set forth a six-part test to help answer the question.
Ganoza told Women’s Wear Daily that the impact of the decision on fashion and brands has become clearer as the U.S. Patent and Trademark Office has begun applying the test to applications for trade dress protection. “I think when it comes to product designs, there is a high bar to prove acquired secondary meaning,” she said. “Trademark Examiners at the USPTO are using the Converse factors in their secondary-meaning determinations when deciding whether a trade dress should be registered.”