Functionality in Trade Dress Prosecution and Litigation: Protecting the Look and Feel of Products and Packaging

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, December 14, 2016
Recorded event now available

This CLE webinar will provide guidance to IP counsel on protecting trade dress and overcoming the challenges and limitations related to functionality. The panel will examine functionality in both applications and litigation and discuss how functionality is addressed in USPTO registration and federal court decisions.


Trade dress—the look and feel of a product or its packaging that identifies the source of the product to consumers—is protected under trademark law. However, if a feature is found to be functional, then that feature is not protected by trademark law. Companies look to trademark law to protect their product designs and packaging and IP counsel must overcome the challenge of functionality before IP protection is available.

IP counsel must understand the requirements for trade dress protection and how functionality is treated in the context of USPTO registration decisions and federal court decisions. Counsel seeking to protect trade dress, product packaging and product configuration must also recognize how the doctrine of functionality limits which product features can be trademarked.

Listen as our authoritative panel examines functionality in trade dress law. The panel will discuss recent court treatment and how it has shaped the doctrine of functionality. The panel will examine functionality in the context of the trade dress applications as well as in litigation and will offer strategies to optimize trade dress protection.


  1. Functionality in trade dress law
    1. In trade dress applications
    2. In litigation
  2. Recent court treatment
  3. Best practices for protecting trade dress


The panel will review these and other key issues:

  • What are the lessons from recent decisions regarding functionality in trade dress applications?
  • What steps can counsel take to overcome the hurdle of proving functionality to obtain trade dress protection?
  • How is the USPTO treating the issues of functionality in the context of trade dress?


Theodore H. Davis, Jr., Partner
Kilpatrick Townsend & Stockton, Atlanta

Mr. Davis's practice focuses on domestic and international litigation and client counseling in the fields of trademark, copyright, false advertising, and unfair competition law. He has particular experience in trade dress disputes and with large-scale trademark clearance and registration projects. He has served on the Board of Directors of the International Trademark Association.

Darius C. Gambino, Partner
DLA Piper LLP (US), Philadelphia

Mr. Gambino has extensive domestic and international IP law experience. His practice primarily focuses on patent, trademark, and copyright matters with emphasis on patent prosecution and litigation, trademark registration and enforcement, copyright registration and enforcement, trade secrets, licensing, opinions and due diligence investigations. He has also published widely on numerous IP topics.


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