What are the elements of a trade dress infringement claim?
A trade dress infringement claim involves the use of a sign, symbol, logo, words, or other elements that represent a company’s product or services. The purpose of trade dress is to differentiate a product or service from those of its competitors. In Delaware, a claim for trade dress infringement requires proof of the following elements: 1. The trade dress of the plaintiff is protected either by copyright or by being distinctive and non-functional. 2. The defendant is using a trade dress that is confusingly similar to the plaintiff’s, so that consumers are likely to be misled or confused as to the source of the goods or services. 3. The defendant’s actions have caused economic harm to the plaintiff, such as lost profits or market share. 4. The defendant had knowledge of plaintiff’s trade dress and intended to cause consumer confusion. Proving a trade dress infringement claim requires evidence showing that the defendant’s use of the plaintiff’s trade dress is likely to cause confusion among consumers. To prove this, a plaintiff must show that the trade dress is non-functional, distinctive, and not similar to other trade dress already in use in the same industry. A plaintiff must also show that they’ve suffered an injury as a result of the defendant’s use of the trade dress. If all of these elements are established, a court may order a defendant to cease use of the infringing trade dress and may award damages and other relief to the plaintiff.
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