A number of readers came here today after putting TRADE DRESS as a search term into Google. I suspect it was because Instapundit ran a piece today entitled “Trade Dress Matters” in which he says that he was intending to purchase the Norelco Rechargeable Shaver (pictured) and instead, because he was in a hurry, purchased what he described as a lookalike knock-off.
Trade Dress refers to the overall appearance of a product or a feature such as “size, shape, color or color combinations, texture, graphics or even certain sales techniques.” John H. Harland Co. v. Clarke Checks, Inc., 771 F.2d 966, 980 (11th Cir. 1983), cited with approval in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753 (1992). Functional aspects of trade dress are not protectable.
I zipped the photo over to my colleague, trade dress raconteur Glenn Mitchell, co-author of INTA’s books on trade dress who writes back:
“To the extent that the overall look of the Norelco shaver is unique and distinctive, it’s certainly conceivable there is secondary meaning, particularly in light of what I believe is a huge market share.
That being said, certain of the most distinctive product features seem to me to have likely functional aspects. First, the triangular, three head design, would appear to have the benefit of covering the greatest amount of face area at any given time.
Second the way the heads are angled from the body seems clearly ergonomically superior than, say, a straight cylinder. The color and finish — I can’t say. [Ed. Note – I bet that may have had a lot to do with the confusion] [Ed. Note to prior Ed. Note – Now that I’ve seen the shavers (above) the color doesn’t appear to be issue].
The aspects of the shaver that seem to me to be most likely non-functional and able to contribute sufficiently to the distinctive look of the shaver are the indentations on the head surface between the rotating heads, and the three line segments that separate the heads and meet in the center.
I question the poster’s status as a reasonable consumer, given (1) that the product had to have been in some packaging labeled with the mark, and (2) an electric shaver, costing probably $75 or more, and something you would be using on your most visible parts for years, is not something likely subject to careless purchasing.
Be that as it may, Instapundit did an admirable job of defending the separation of powers doctrine on Kudlow last night.