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

Yes, there are defenses against a claim of trade dress infringement in Texas. The key defense is that the trade dress is functional, not ornamental. Trade dress is a form of trademarking, and it includes the design, shape, features, colors, or graphics that identify a product. Thus, if the design or features of a product are functional, then it is not subject to trademark protection. Another defense is that the trade dress used is not distinctive and would not be recognized as an associated design or brand. Trade dress must be distinctive in order to receive trademark protection. Without distinctiveness, there is no trademark law to protect the trade dress, and so it is not subject to infringement. It may also be a defense to show that the trade dress used is descriptive of the product, not ornamental. If a product’s trade dress is simply descriptive of the product’s features, then it is not subject to trademark law and will not be considered infringing. Finally, some courts have held that if the two trade dresses are not too similar, then they may not be infringing. This is called the de minimis rule, and it means that if the similarity between the two trade dress products is very minor, then it will not be considered infringing. All these defenses can be used in Texas to fight a claim of trade dress infringement. If any of these defenses is present, then the accused product is not infringing, and the claim will be dismissed.

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