Fashion Confronts Its Trade Dress Challenge

Securing broad trade dress protections is an evergreen challenge for fashion brands trying to ward off copycats. Companies often have to show how their unique designs — shapes, colors, patterns and their placement in the product — have “secondary meaning,” such that they automatically signal the brand’s identity to consumers. For fashion designs, which tend to be seasonal, it may take a lot to show that a particular design has had a lasting enough impact to create an enduring brand association to consumers, attorneys said.     The Federal Circuit appeals court tackled this question in October, finding in a case involving Converse All Star shoes that the issue of whether a trademark design has secondary meaning, or “acquired distinctiveness,” involves six questions, including customers’ perception of the design, the volume of sales and the size of the product’s audience. The ruling’s impact has become clearer in recent months as the U.S. Patent and Trademark Office has applied it to evaluate applications, intellectual property attorneys said. In March, the PTO’s Trademark Trial and Appeal Board even applied the Federal Circuit’s Converse test in a case involving fish food, according to TTAB records. “I think when it comes to product designs, there is

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