Dichotomy of Product Packaging/ Product Design in U.S. Trade Dress Law and Its Implications for Developing Countries

U.S. trade dress law has changed dramatically as a result of the Supreme Court's Wal-Mart decision in 2000. The Wal-Mart Court held that, in detem1ining legal protection for a trade dress, different standards should be applied depending on whether the trade dress is product packaging or product design. However, this dichotomy rule resulted in some controversy because the Court failed to set out clear tests for distinguishing between product packaging and product design; for determinjng under what circumstances trade dress is inherently distinctive. In this regard, this dissertation proposes two-prong tests ' which look to physical detachability, and perception by ordinary consumers and trade custom to determine whether a feature asserting trade dress protection is product packaging or product design. To qualify as inherently distinctive, the product packaging must be "unique or unusual" in the "particular field" at issue. This dissertation also argues that trade dress in the services context must be distinguished from product trade dress, for example defining the decor of a chain of restaurant in the Two Pesos case as service dress rather than mere product trade dress...

Name thesis:degree_name

Doctor of Juridical Science (SJD)

Level thesis:degree_level

Dissertation

Year dc:date.available

2006

Author dc:creator

• kim, Yong Sun

Contributors dc:contributor

• Professor of Law, Charles R. McManis, Chairperson Professor of Law, John Owen Haley Professor of Law, A. Peter Mutharika

• Trade dress law
• Product packaging
• Product design
• Antitrust and Trade Regulation
• Intellectual Property Law

Language dc:language

English

DOI

https://doi.org/10.7936/v7my-gy63

OAI identifier oai:identifier

oai:openscholarship.wustl.edu:law_etds-1025