Plaintiff Laurel Road, a bank, ran an advertising campaign. A typical ad looked like this:

A competitor, Commonbond, ran ads, one of which looked like this:

Both banks ran outdoor display ads, sometimes in similar locales, such as the suburban rail-line, MTA North.

Plaintiff brought a trade dress claim, alleging a trade dress that consists of:

  1. a color palette with a dark background;
  2. a statement in large, light-colored, sans serif font at the top of the advertisement;
  3. a “hierarchical” typography with smaller, sans serif font under the large typeface sentences;
  4. center or left-side alignment; and
  5. a colored line under a sub-set of words in the large typeface sentences.

Plaintiff brought a motion for a preliminary injunction.

Held: All of plaintiff’s claimed elements, ‘defined at a high level of generality’, can be readily found in other advertisements. In fact, Defendant showed that it had used most if not all of the claimed elements, prior to plaintiff. “Because the Trade Dress is composed exclusively of commonly used elements, which have all been used in combination previously, the Trade Dress is likely generic . . .” Alternately, the alleged Trade Dress is functional, as it consists of features useful to advertising or educating consumers about the product.

Comment: The ‘look and feel’ of an advertising campaign is potentially protectable. Philip Morris successfully asserted rights in the Marlboro man ‘motif’ of a cowboy on a horse. Harlequin established rights in the layout of the covers of its romances. However, Haagen-Dazs was unsuccessful in preventing Frusen Glade from also pretending to be Scandanavian.

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