Trade Dress Protection and the Problem of Distinctiveness, 1 J. Marshall Rev. Intell. Prop. L. 225 (2002)

The problem of trade dress protection is this: What rules should we apply to trade dress protection to best satisfy the goals of trademark law? The merit of various proposed solutions can be measured by evaluating how effective they are in achieving those goals in various disputes. Both distinctiveness and likelihood of confusion should be understood from the perspective of the relevant public, not from that of the court, the trademark owner or the infringer. The questions we seek to answer only have coherent meaning if we consider the perception of the public. Otherwise, we are unable to determine if the plaintiff has any goodwill to protect or if the defendant’s acts are unfair. When the results or reasoning of a trademark or trade dress decision seem flawed or confused, the cause often lies in a failure to analyze the problem based on the perception of the public. To the extent, however, that such questions have been obscured behind a layer of other concerns—behind a layer of categories, factors and analytical distinctions—we may be falling short of the central goals of trademark law. Refocusing on these questions may bring us closer to those goals. Trade dress seems to be an area in particular need of this refocus as the debate over protection continues