Are there any defenses against a claim of trade dress infringement?

Yes, there are defenses against a claim of trade dress infringement in California. The most common defense is the doctrine of “functional defense.” This means that a product can be designed in a way that is primarily functional, rather than aesthetically appealing, and thus unlikely to be confused with another product. The functional elements of a product also may receive greater protection under the law. Another defense is the doctrine of “inevitable disclosure.” This defense argues that the accused party had no reasonable way of preventing the disclosure of the trade dress and that the accused could not have taken reasonable steps to prevent the disclosure of the trade dress. In addition to those two defenses, California unfair competition laws also have a “fair use” defense. This means that if the accused party can prove that their use of the trade dress was not primarily meant to deceive or confuse the consumer, then they may have a defense against a claim of trade dress infringement. Finally, California unfair competition laws also have a “general” defense. This means that if the accused party can prove that their use of the trade dress did not cause any actual confusion among consumers and that the accused party did not try to mislead customers, then they may have a defense against a claim of trade dress infringement. All of these defenses must be evaluated based on the facts of each case and the particular circumstances surrounding the claim of trade dress infringement.

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