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

Yes, there are potential defenses against a claim of trade dress infringement under Kansas law. Generally, trade dress infringement occurs when a party uses the “look and feel” of another party’s product or service to their own commercial advantage. The primary defense for trade dress infringement is that the alleged infringer can claim that their product or service is not actually a copy of the protected trade dress, but rather, creates its own distinct look and feel. This means that the trade dress must be both non-functional and not substantially similar to an existing trade dress if one hopes to successfully mount this defense. Another defense is the doctrine of “fair use.” Generally, this allows for limited use of a protected trade dress without violating a party’s trade dress rights. This is particularly true in cases of parody or criticism, where the use of a protected trade dress is necessary to provide an effective criticism or parody. Finally, the “prior use” defense may be used when a party can prove that they have used the trade dress in question before the other party can demonstrate their own legitimate use. This requires detailed evidence of the accused party’s prior use, which may be in the form of documentation, photos, and other materials. In all, each case of alleged trade dress infringement is unique and must be evaluated on its own merits. It is therefore important for parties to consult with an experienced Kansas attorney to discuss the potential defenses that may be available to them.

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