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

Yes, there are defenses available against a claim of trade dress infringement in North Carolina. Trade dress infringement occurs when a business uses the trade dress of another business. The trade dress of a business may include their packaging, product design, and overall brand presentation. One potential defense is that the trade dress used is not protectable under the law. Not all trade dress is protectable, and even if it is, there may be prior rights or limitations that prevent one party from legally asserting their trade dress. For example, a business may not be able to protect a trade dress if it is functional or in the public domain. Another potential defense is that there is no likelihood of confusion between the parties’ trade dress. Courts often look at several factors in determining likelihood of confusion, including comparative impressions of the trade dress, similarity of goods, and intent of the alleged infringer. If it can be shown that the trade dress used was not likely to confuse customers, then the defendant may be able to avoid liability for trade dress infringement. Finally, equitable defenses may be available depending on the circumstances surrounding the trade dress infringement. This includes defenses such as laches and unclean hands. Laches is a defense when one party has been unreasonably delayed in asserting their rights, while unclean hands refers to when one party has acted in bad faith. These defenses may be difficult to prove, but could prove helpful in defending against a claim of trade dress infringement.

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