levis trade dress.jpg
Levi Strauss owns registrations that cover the design of the back pockets, such as this one:
levis back pocket.gif
which is described as:
“a double arcuate and tab design shown on the shape of a pocket, as indicated by a solid line. The lining and shading shown in the drawing are features of the mark and not intended to indicate color.”
This NY Times article reports on Levis’ active efforts to police its pocket design. The Times, with the help of Thomson West, created this terrific graphic to illustrate some of the third party pocket designs Levis has sued:
ny times pocket designs.jpg
The article quotes competitors who suggest that this litigation is some how related to Levis’ failure to take part in the emerging $200 jean market. I’m skeptical – Levis had a reputation for being litigious before there was a Seven For All Mankind.
It may be more interesting to ask: what effect has Levis’ enforcement of its ‘picket fence’ of trademarks had on competition in its segment of the jeans market?
p.s. I don’t knwo what the provenance is of the photo depicted above, but I encountered it here.

NY Lawyer: “Tom Waits Settles Advertising Lawsuit” (“Grammy Award-winning singer Tom Waits has settled a lawsuit in which he claimed an automaker and an ad agency violated his rights by imitating him in TV commercials, his lawyer said.”)
If there were an official theme song to Lanham Act Section 43(a), then Tom Waits’ Step Right Up would be it.

Why are there not more decisions regarding the trade dress of a web page? Is it because copyright preempts most such claims? Magazine covers have been awarded trade dress protection,Time Inc. v. Globe Communications Corp., 712 F.Supp. 1103 (S.D.N.Y. 1989), why not web pages? (I’ve been puzzling about the trade dress of magazine covers for a while).
Any way, the Western District Court of Washington has upheld a Motion to Dismiss a trade dress claim for a webpage, ruling that at this stage of the litigation, the copyright claim will not preempt the trade dress claim (link to the decision in this post from the Seattle Trademark Lawyer).
From Footnote 8:
” As a novel theory legal, there are more articles supporting trade dress protection for the “look and feel” of websites than there are published cases deciding the merits of this theory. See G. Peter Albert, Jr. & Laff, Whitesel & Saret, Ltd., Intellectual Property Law in Cyberspace 198-99 (1999 & Supp. 2005) (“One of the next conflicts to arise between the Internet and trademark law is likely to be the question of whether a Web page contains elements protectable as trade dress. . . . Trade dress protection of Web pages has yet to be the central issue in an infringement claim.”); Xuan-Thao N. Nguyen, Should It Be a Free For All? The Challenge of Extending Trade Dress Protection to the Look and Feel of Web Sites in the Evolving Internet, 49 Am. U.L. Rev. 1233, 1276-77 (2000) (“The purpose of Section 43(a) of the Lanham Act is to protect consumers from being deceived as to the source of a product or service. To fulfill that purpose, it is logical to extend trade dress protection to the overall look and feel of web sites that are inherently distinctive or have acquired secondary meaning and are non-functional.”); Jason R. Berne, Comment, Court Intervention But Not In a Classic Form: A Survey of Remedies in Internet Trademark Cases, 43 St. Louis L.J. 1157, 1172 (1999) (“One as yet barely broached area of Internet trademark litigation involves trade dress of a website. In such a case, a plaintiff may claim that the defendant has in some way infringed on the ‘total image and overall appearance’ of a site, rather than one single trademark. Although no cases of trade dress infringement of a website have been reported, at least one claim has been filed on this basis.”).
Trade Dress basics.

Registrars reserve powerful rights to de-register domain names belonging to registrants who have violated the terms of service agreement. They tend not to, in the absence of a court order. It turns out that GoDaddy does, here in the case of a website that was making available lists of MySpace usernames and passwords.
One domain name industry site is calling this a PR nightmare for GoDaddy. GoDaddy might, however, be able to pick up some business from the people who had their usernames and passwords published.

GoDaddy’s CEO maintains a blog, and we hope he comments on this.

Facts: Masquelier invents a process for deriving a natural extract, and sells it in France under the PYCNOGENOL name. Horphag sells the product in the US under contract with Masquelier. They have a falling out and Horphag obtains the US registration in his own name. Garcia, a new distributor for Masquelier, begins selling a competing party in the U.S. Horphag sues Garcia for trademark infringement and dilution after Garcia reproduces the PYCNOGENOL name in several problematic ways (for example, as a meta-tag).
In his defense to the dilution cause, Garcia argues in part that the fame of the PYCNOGENOL mark in the U.S. (it is apparently a best-selling suppement) derived from Masquelier’s original work. Here is the Ninth Circuit analysis:
“Garcia also challenges Horphag’s dilution cause of action
by claiming that he should not be liable for trademark dilution
when the Pycnogenol trademark had already been diluted
prior to his use. In Garcia’s opposition to summary judgment,
he argued that the “famousness of [Horphag’s] ‘Pycnogenol’
is derived from . . . [and] rel[ies] upon the famousness of the
Masquelier ‘Pycnogenol.’ ” He appears to raise the same issue
on appeal by arguing that Horphag is capitalizing on Masque-
lier’s good will and popularity, rather than the other way
around.
We disagree. Garcia has not presented any evidence show-
ing that the Masquelier’s product enjoys any fame in the
United States that is independent of Horphag’s Pycnogenol
mark. It is Horphag’s product that is a “buzz item” in the
United States, not Masquelier’s. It is Horphag that has
invested in research and marketing to increase the “famous-
ness” of its product in this country, not Masquelier. Hor-
phag’s Pycnogenol trademark is famous not because of a
French product, but because of Horphag’s own investment in
advertising, research, and quality control.
COMMENT: It’s interesting how the Court is looking out at fame. At least the first six years of Horphag’s use in the U.S. was ‘under contract’ with Masquelier. We don’t know precisely how Horphag was able to register the name in 1993 under his own name. One would have to assume that during that prior to that time, however, Horphag, as a distributor, would have identified Masquelier as the source of the product in some way (at least to promote him as the inventor). From a ‘moral’ point of view, Horphag’s fame may well rest on a foundation created by Masquelier. From a trademark dilution point of view, it may be completely correct to say that today, no one in the U.S. is aware of MAsquelier’s role in creating PYCNOGENOL.
PRACTICE POINT: NEVER LET YOUR FOREIGN DISTRIBUTORS OWN YOUR TRADEMARK!
PRACTICE POINT #2: Repeat after me: “ALL USE OF THE MARK INURES TO THE USE AND BENEFIT OF LICENSOR.”