It is natural for manufacturers to seek to widen their intellectual property protection. In the seminal case TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 US 23 (2001), the Supreme Court struck down the plaintiff’s attempt to expand the reach of its expired utility patents by claiming trade dress protection in those designs. The Supreme Court ruled that “functional” designs could never be protected trade dress.
The United States Patent and Trademark Office, Trademark Trial and Appeal Board (“TTAB” or the “Board”) last week provided further instruction in how to interpret trade dress claims in light of expired patents in Poly-America, L.P. v. Illinois Tool Works, Inc., Cancellation No. 92056833 (October 18, 2017). In this case, the Board cancelled a nearly fifty-year-old registration for the design of resealable plastic sandwich bags. Continue Reading