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Loose Definition of ‘Functionality’ Kills Pocky Trade Dress

Oct. 9, 2020, 9:37 PM

The Third Circuit’s invalidation of popular snack Pocky’s chocolate-dipped stick as a trademark re-emphasized a low bar for finding product designs too functional to be protectable trade dress.

Pocky advertisements for a “no mess handle” making it “easier for multitasking” without getting messy hands helped sink its bid to revive its infringement lawsuit, the U.S. Court of Appeals for the Third Circuit said.

Ezaki Glico USA Corp., the U.S. arm of the Japanese company that began selling Pocky in the U.S. in 1978, lost decades-old trade dress registrations in its fight against Lotte Confectionary Co. Ltd., which introduced stick-shaped...

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