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Speaker 1: Trade dress, on the other hand, is sort of how

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something looks like the theme of a restaurant for example.

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That's what trade dress really is and it can be protected.

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Speaker 2: You are listening to Carrie Leutz's Financial Survival Network, where

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you get valuable information you just can't find anywhere else

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to thrive in today's trying times. You need the Financial

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Survival Network now more than ever. Go to Financial Survivalnetwork

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dot com and get your free newsletter and gift. Financial

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Survival Network now more than.

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Speaker 4: Ever, and welcome.

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Speaker 3: You are listening to and watching the Financial Survival Network.

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I'm your host, Carrie Lutz. Well, I'm gonna throw a

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new term at ye. I bet you don't know about it,

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but you should. You need to know about it. It's

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called trade dress. And here to explain more is Kristin Roberts,

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noted ip attorney from the West Coast in California. Christian.

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It's great to have you on the show. So what

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is trade dress and why should I care?

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Speaker 2: Well?

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Speaker 1: Trade dress is a method of protecting your intellectual property.

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It's another method. Trade dress effectively describes your look. You're

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esthetic the look in the feel of something. So it's

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not going to be your trademark, which is your name,

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your brand, your symbol that you use to identify yourself

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to the public, and you know what goods and services

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you sell. Trade dress, on the other hand, is sort

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of how something looks like the theme of a restaurant

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for example. That's that's what trade dress really is, and

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it can be protected, all right.

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Speaker 3: So I'm thinking like if I wanted to start my

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own hot dog line and I come up with an

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Oscar meyer Wiener looking mobile, but I call it carries dogs,

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but it looks exactly the same other than the name,

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that could be a violation of trade dress there. Huh.

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Speaker 1: Potentially, yeah, potentially, depending on whether or not the Oscar

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my Wiener is protected by trademark as well. But yes,

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overall that that can be it. I usually think of

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trade dress like when you go into a restaurant, like,

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for example, taco bell. For the example, you go into

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a taco bell, and you know what to expect when

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you walk into that taco bell because they all look

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a certain way, they all have a certain feel or

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like an in and out Burger for example, they all

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have those red stripes and the palm trees, and you

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can go inside and there's the color, the esthetic.

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Speaker 4: That's the trade dress, right.

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Speaker 3: So I think of like you go into CVS and

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they have their house brand, or you go into supermarkets

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they have their house brand, and if you didn't look

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at the name, you might not even know and you

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just grab the cheaper one, right.

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Speaker 1: Yeah, And that's actually also those are trademarks, right, so

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their house marks are protected under trademark and trade dress

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is protected in a very similar way as a trademark

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would be.

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Speaker 3: But like in China, you know, they knock off these

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cars and you can't tell a BMW from their ZNW

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or whatever. But in China they don't really enforce foreign

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intellectual property very effectively. In fact, they don't even care

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about it.

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Speaker 1: Well, in China, for example, they have their own intellectual

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property system, and unfortunately our trademark trade dress, you know,

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intellectual property rights in the United States they only protect

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us within the United States borders. So if you want

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your stuff protected in other countries, you actually like to

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go to those countries and register and protect them.

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Speaker 3: There, right, right, So, but it gets it's a slippery slope.

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Where does it end? Is what I'm thinking, Like, because

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so many things fall into this because we're all trying

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to brand, we're all trying to do our own identity.

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So if another lawyer kind of started knocking off your

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trade dress on your website and everything else, and his

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name was Chris Roberts, you know, you might have a

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case against them. It's it seems like it's it seems

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like it's too hard to define and too hard to

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say who's violating it because you might do it a

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little bit, but not enough. It requires like a judgment

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maybe that courts really aren't designed to handle, to really

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deal with, right well.

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Speaker 1: Not necessarily, there actually happen cases where courts have been

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able to, you know, enforce and affirm a company's trade

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dress rights. The ones I can think of off the

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top of my head would be Taco Cabana. They're a

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really famous chain in Texas. They're like a text text

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next chain, and their case went all the way to

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the Supreme Court because they were saying, hey, this other

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restaurant is taking the colors and the esthetic and the

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decore and they're trying to apply it in the same

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way and it's confusing people into thinking that they're related

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to us in some way. And the court was able

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to say yeah, that's protectable because it is so unique.

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But I think where we run into issues is where

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the trade dress is maybe on the line where it's

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not super unique, where it's something that a lot of

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people are using or doing, and then someone says, well,

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I invented that, that's mine. That's really where you start

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to run into those issues of well, is it on

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the line?

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Speaker 4: Is it too close? And how do we decide?

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Speaker 3: Yeah, and that is a really good question because it's

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like it's a question of degree almost rather than of kind.

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Because you know, like food in the supermarket, the most

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eye catching colors are red and yellow and orange. So

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once you start with this, I don't know, I just

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see issues with it. So it's got to be an

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out and out theft for the courts to really they're

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going to want to step in, right, Well.

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Speaker 1: It needs to be brought by somebody who believes that

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there's been an out and out theft, and then they

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have to present it in a way that is reasonable

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to a court.

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Speaker 4: So when a court looks at it, they agree.

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Speaker 1: I think if there are just a few items that

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are taken, that's a lot harder to prove. Now, if

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those items that are taken are really unique items. For example,

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you know the chip and Dal's dancers, they are pretty

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well known, they have pretty well known trade dress. Those

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little bow ties and those little cuffs trade Yeah.

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Speaker 4: But those those are actually registered trade dress with the

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United States Pippark Office.

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Speaker 1: But they had to really fight to get that protected

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as trade dress because how are you going to say.

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Speaker 4: A bow tie and coffs are are recognizable?

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Speaker 1: But because they've been using them for so long and

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everybody sees that on you know, one of those dancers,

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they automatically associate it with the Chipendale's brand. And so

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because of that, it is protectable and it would be

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something so even if though they're small things, they're little pieces,

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they are still considered as part of the trade dress

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and that thus protectable if they needed to bring a lawsuit.

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Speaker 3: Okay, so this is an emerging field of the law.

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What's your got feel? How far will the court go

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to protect trade dress?

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Speaker 1: Well, we have a really interesting case right now between

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two social media influencers that's pending in Texas. It's still

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you know, we still don't know how the case is

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going to unfold. But I think that this is a

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really interesting case because this is the first time we've

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seen this trade dress argument applied to the aesthetic of

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a social media page. This creator is alleging that her

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cream and beige aesthetic is being stolen by another creator

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on top of copyright infringement, I claim. So they're stacking

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the arguments, but the main one is, hey, she's stealing

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my vibe. And right now, you know, cream and beige.

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A lot of people use cream and beige. So if

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this were to go as far as this creator is

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trying to take it, I think it can have some

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pretty serious ramifications because a lot of the creator community

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is based on an inspiration, is based on sort of

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taking from things that we see from others and making

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it our own, and that could really sort of stymy that.

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Speaker 3: Yeah, it just reminds me of law school. We learned

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hard cases make bay of law.

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Speaker 1: Right listen, you know that is true.

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Speaker 3: So it's gonna be interesting to see. So we're just

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in the preliminary phases. They're in discovery.

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Speaker 1: Now, as I don't even think they've answered the lawsuit yet.

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I think they were given an extension of time to

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answer if I'm not mistaken, and I think that this

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was filed back in early summer of this year. So

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this is a very very new case that will unfold.

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Chances are it may settle, you know, most of these

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cases do. But you know, if it were to go

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all the way, it could really set some interesting precedent.

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Speaker 4: I do think that there's a.

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Speaker 1: Problem with going too broad in this type of a case,

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because we don't want.

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Speaker 4: To chill speech.

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Speaker 1: You know, we don't want people to stop being creative

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with the fear that they'll get soon.

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Speaker 3: And probably in this case, strategic lawsuit just to get

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her to stop. And it's like a lot of people

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will look at a lawsuit and say, I don't need this.

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I'll change to blue and red and let the political

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parties come after me for violating their trade dress.

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Speaker 4: Right, well, the red, white, and blue. You're pretty safe

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with that America aesthetic. Yeah, exactly.

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Speaker 3: You know what's funny is like Rolex watches. When I

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was thinking about this, they have different colored dials and

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one is called a pepsi, another's a Coca cola, another's

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a Kermit the frog. It's green. So all of a sudden,

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once you start and those are nicknames. They aren't official

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Rolex names for the watches, but you know where does

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it end? Well, Hey, people want to find out more

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about you, Kristen, connect with you on the web. How

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do you do that?

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Speaker 1: Well, I'm on all social media platforms. If anyone wants

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to find me at trustle Law. The spellings right there

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if they need to see it, and I'm also on

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my website tresselaw dot com.

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Speaker 4: You can find me anywhere.

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Speaker 1: Always drop me a line, ask me questions. I like

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to share videos and be on social as well.

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Speaker 4: Great.

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Speaker 3: Well, hey, if you've been a victim of trade dress

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appropriation I guess, for lack of a better term, infringement, infringement, infringement,

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then you'll want to talk to Kristin. Her link her

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law firms link is in the show notes to this

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interview on Financial Survival Network dot com. While you're there,

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sign up for your free newsletter. Question for Kristin myself.

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I am a recovering attorney after all. Just shoot me

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an email kl at Carrie LUTs dot com. Kristin, thanks

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for stopping by. We'll talk to you again.

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Speaker 4: So thank you.

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Speaker 2: Thanks for listening to Carrie Letz's Financial Survival Network your

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solution to today's trying times. For the latest, go to

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Financial Survivalnetwork dot com Financial Survival Network now more than ever,