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While the concept of trade dress has existed for some time, the doctrine remained dormant for many years until the Supreme Court decisions in Two Pesos, Wal-Mart and TrafFix Devices. These decisions raised the profile of trade dress, and changed its perception for many practitioners. Ultimately, these decisions increased attention to trade dress at the developmental stage. As with patents, many companies have implemented programs to identify and protect trade dress as early as possible, especially in the wake of these decisions.
There is no doubt that trade dress litigation will soon not only become a major competitor to patent litigation as a means of resolving disputes, but in most instances, a significantly cheaper and viable alternative. Trade Dress: Evolution, Strategy, and Practice analyzes the differences between the two major types of trade dress - product configuration and product packaging - describes the standards of proof for each, and explains how these standards have been interpreted (and in some cases misinterpreted) by the federal courts. The book also reviews the evolution of trade dress in the United States and its recent emergence as an enforcement alternative. Finally, it offers practical suggestions on how best to utilize trade dress rights in protecting a client's intellectual property.