What are the elements of a trade dress infringement claim?
A trade dress infringement claim in Florida follows the same outline as most other states, and it is based on the federal Lanham Act. The elements for a trade dress infringement claim in Florida include: 1. That the product or service has acquired a "secondary meaning" in the marketplace. This means that the product or service has been around long enough for consumers to associate it with one single source. 2. That the trade dress of the product or service is being infringed upon by another product or service. 3. That the infringement is likely to cause consumer confusion or mistake. The confusion element means that consumers are likely to be confused by the use of the trade dress on the infringing product, and may mistakenly believe that the product was produced by the original creator. 4. That there is a likelihood of damage to the original product or service from the infringing product. This means that the original product or service may suffer harm from the sale of the infringing product. In addition to meeting the necessary elements for a trade dress infringement claim, the plaintiff must also be able to demonstrate bad faith on behalf of the defendant. Bad faith is a form of unfair competition, and includes such practices as the copying of another’s product or service in an attempt to benefit from their success.
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