Speaker 1: Trade dress, on the other hand, is sort of how
something looks like the theme of a restaurant for example.
That's what trade dress really is and it can be protected.
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Speaker 4: Ever, and welcome.
Speaker 3: You are listening to and watching the Financial Survival Network.
I'm your host, Carrie Lutz. Well, I'm gonna throw a
new term at ye. I bet you don't know about it,
but you should. You need to know about it. It's
called trade dress. And here to explain more is Kristin Roberts,
noted ip attorney from the West Coast in California. Christian.
It's great to have you on the show. So what
is trade dress and why should I care?
Speaker 2: Well?
Speaker 1: Trade dress is a method of protecting your intellectual property.
It's another method. Trade dress effectively describes your look. You're
esthetic the look in the feel of something. So it's
not going to be your trademark, which is your name,
your brand, your symbol that you use to identify yourself
to the public, and you know what goods and services
you sell. Trade dress, on the other hand, is sort
of how something looks like the theme of a restaurant
for example. That's that's what trade dress really is, and
it can be protected, all right.
Speaker 3: So I'm thinking like if I wanted to start my
own hot dog line and I come up with an
Oscar meyer Wiener looking mobile, but I call it carries dogs,
but it looks exactly the same other than the name,
that could be a violation of trade dress there. Huh.
Speaker 1: Potentially, yeah, potentially, depending on whether or not the Oscar
my Wiener is protected by trademark as well. But yes,
overall that that can be it. I usually think of
trade dress like when you go into a restaurant, like,
for example, taco bell. For the example, you go into
a taco bell, and you know what to expect when
you walk into that taco bell because they all look
a certain way, they all have a certain feel or
like an in and out Burger for example, they all
have those red stripes and the palm trees, and you
can go inside and there's the color, the esthetic.
Speaker 4: That's the trade dress, right.
Speaker 3: So I think of like you go into CVS and
they have their house brand, or you go into supermarkets
they have their house brand, and if you didn't look
at the name, you might not even know and you
just grab the cheaper one, right.
Speaker 1: Yeah, And that's actually also those are trademarks, right, so
their house marks are protected under trademark and trade dress
is protected in a very similar way as a trademark
would be.
Speaker 3: But like in China, you know, they knock off these
cars and you can't tell a BMW from their ZNW
or whatever. But in China they don't really enforce foreign
intellectual property very effectively. In fact, they don't even care
about it.
Speaker 1: Well, in China, for example, they have their own intellectual
property system, and unfortunately our trademark trade dress, you know,
intellectual property rights in the United States they only protect
us within the United States borders. So if you want
your stuff protected in other countries, you actually like to
go to those countries and register and protect them.
Speaker 3: There, right, right, So, but it gets it's a slippery slope.
Where does it end? Is what I'm thinking, Like, because
so many things fall into this because we're all trying
to brand, we're all trying to do our own identity.
So if another lawyer kind of started knocking off your
trade dress on your website and everything else, and his
name was Chris Roberts, you know, you might have a
case against them. It's it seems like it's it seems
like it's too hard to define and too hard to
say who's violating it because you might do it a
little bit, but not enough. It requires like a judgment
maybe that courts really aren't designed to handle, to really
deal with, right well.
Speaker 1: Not necessarily, there actually happen cases where courts have been
able to, you know, enforce and affirm a company's trade
dress rights. The ones I can think of off the
top of my head would be Taco Cabana. They're a
really famous chain in Texas. They're like a text text
next chain, and their case went all the way to
the Supreme Court because they were saying, hey, this other
restaurant is taking the colors and the esthetic and the
decore and they're trying to apply it in the same
way and it's confusing people into thinking that they're related
to us in some way. And the court was able
to say yeah, that's protectable because it is so unique.
But I think where we run into issues is where
the trade dress is maybe on the line where it's
not super unique, where it's something that a lot of
people are using or doing, and then someone says, well,
I invented that, that's mine. That's really where you start
to run into those issues of well, is it on
the line?
Speaker 4: Is it too close? And how do we decide?
Speaker 3: Yeah, and that is a really good question because it's
like it's a question of degree almost rather than of kind.
Because you know, like food in the supermarket, the most
eye catching colors are red and yellow and orange. So
once you start with this, I don't know, I just
see issues with it. So it's got to be an
out and out theft for the courts to really they're
going to want to step in, right, Well.
Speaker 1: It needs to be brought by somebody who believes that
there's been an out and out theft, and then they
have to present it in a way that is reasonable
to a court.
Speaker 4: So when a court looks at it, they agree.
Speaker 1: I think if there are just a few items that
are taken, that's a lot harder to prove. Now, if
those items that are taken are really unique items. For example,
you know the chip and Dal's dancers, they are pretty
well known, they have pretty well known trade dress. Those
little bow ties and those little cuffs trade Yeah.
Speaker 4: But those those are actually registered trade dress with the
United States Pippark Office.
Speaker 1: But they had to really fight to get that protected
as trade dress because how are you going to say.
Speaker 4: A bow tie and coffs are are recognizable?
Speaker 1: But because they've been using them for so long and
everybody sees that on you know, one of those dancers,
they automatically associate it with the Chipendale's brand. And so
because of that, it is protectable and it would be
something so even if though they're small things, they're little pieces,
they are still considered as part of the trade dress
and that thus protectable if they needed to bring a lawsuit.
Speaker 3: Okay, so this is an emerging field of the law.
What's your got feel? How far will the court go
to protect trade dress?
Speaker 1: Well, we have a really interesting case right now between
two social media influencers that's pending in Texas. It's still
you know, we still don't know how the case is
going to unfold. But I think that this is a
really interesting case because this is the first time we've
seen this trade dress argument applied to the aesthetic of
a social media page. This creator is alleging that her
cream and beige aesthetic is being stolen by another creator
on top of copyright infringement, I claim. So they're stacking
the arguments, but the main one is, hey, she's stealing
my vibe. And right now, you know, cream and beige.
A lot of people use cream and beige. So if
this were to go as far as this creator is
trying to take it, I think it can have some
pretty serious ramifications because a lot of the creator community
is based on an inspiration, is based on sort of
taking from things that we see from others and making
it our own, and that could really sort of stymy that.
Speaker 3: Yeah, it just reminds me of law school. We learned
hard cases make bay of law.
Speaker 1: Right listen, you know that is true.
Speaker 3: So it's gonna be interesting to see. So we're just
in the preliminary phases. They're in discovery.
Speaker 1: Now, as I don't even think they've answered the lawsuit yet.
I think they were given an extension of time to
answer if I'm not mistaken, and I think that this
was filed back in early summer of this year. So
this is a very very new case that will unfold.
Chances are it may settle, you know, most of these
cases do. But you know, if it were to go
all the way, it could really set some interesting precedent.
Speaker 4: I do think that there's a.
Speaker 1: Problem with going too broad in this type of a case,
because we don't want.
Speaker 4: To chill speech.
Speaker 1: You know, we don't want people to stop being creative
with the fear that they'll get soon.
Speaker 3: And probably in this case, strategic lawsuit just to get
her to stop. And it's like a lot of people
will look at a lawsuit and say, I don't need this.
I'll change to blue and red and let the political
parties come after me for violating their trade dress.
Speaker 4: Right, well, the red, white, and blue. You're pretty safe
with that America aesthetic. Yeah, exactly.
Speaker 3: You know what's funny is like Rolex watches. When I
was thinking about this, they have different colored dials and
one is called a pepsi, another's a Coca cola, another's
a Kermit the frog. It's green. So all of a sudden,
once you start and those are nicknames. They aren't official
Rolex names for the watches, but you know where does
it end? Well, Hey, people want to find out more
about you, Kristen, connect with you on the web. How
do you do that?
Speaker 1: Well, I'm on all social media platforms. If anyone wants
to find me at trustle Law. The spellings right there
if they need to see it, and I'm also on
my website tresselaw dot com.
Speaker 4: You can find me anywhere.
Speaker 1: Always drop me a line, ask me questions. I like
to share videos and be on social as well.
Speaker 4: Great.
Speaker 3: Well, hey, if you've been a victim of trade dress
appropriation I guess, for lack of a better term, infringement, infringement, infringement,
then you'll want to talk to Kristin. Her link her
law firms link is in the show notes to this
interview on Financial Survival Network dot com. While you're there,
sign up for your free newsletter. Question for Kristin myself.
I am a recovering attorney after all. Just shoot me
an email kl at Carrie LUTs dot com. Kristin, thanks
for stopping by. We'll talk to you again.
Speaker 4: So thank you.
Speaker 2: Thanks for listening to Carrie Letz's Financial Survival Network your
solution to today's trying times. For the latest, go to
Financial Survivalnetwork dot com Financial Survival Network now more than ever,