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

Yes, there are defenses against a claim of trade dress infringement in Washington. Trade dress infringement occurs when someone uses another person’s product in a way that makes it appear that it is their own. The Washington Unfair Competition Law protects a business’s trade dress. The first defense against a claim of trade dress infringement is called nominative fair use. This defense works when the accused uses the infringing trade dress to refer to the product from which the trade dress was taken. This is allowed so that a product can accurately refer to another product. Second, there is a defense of fair comment and critique, which works when the alleged infringement is used for criticism or comment of the original product. It is important to note that this defense requires that the comment or critique be accurate. Third, there is a defense of reverse confusion. This defense works when the original product has not developed a significant amount of trade dress recognition and the accused’s use of the product is within the boundary of the law. This defense helps to protect the original product from being misused by other businesses or entities. Lastly, there is a defense of generic use, which works when the use of the infringing trade dress would not likely lead to confusion in the marketplace. This defense helps to protect businesses against trade dress infringement when they are not attempting to persuade consumers that their product is related to the original product. Overall, there are several defenses that businesses in Washington can use to protect themselves from claims of trade dress infringement. Each defense is unique, so it is important for businesses to understand the applicable laws and how to apply them to their own situation.

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