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Trade Dress Utility Stays on Supreme Court Menu After Pocky Punt

Nov. 30, 2021, 10:02 AM

The U.S. Supreme Court still has a chance to clarify its guidance on trade dress functionality this term, despite declining to consider the issue in a case involving Pocky sticks.

Trade dress—the look and feel of a product or its packaging, designed to help customers identify who made it—can generally be protected as a trademark if it isn’t functional.

Existing Supreme Court guidance on the fundamental distinction between designs that improve products and ones that signal who produced them remains unclear, trademark attorneys say. As a result, they say they can’t be sure how courts will evaluate attributes of products ...

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