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 Thursday, January 11, 2018

Recorded event now available

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Program Materials

This CLE webinar will guide IP counsel on identifying and overcoming challenges related to the distinction between nonfunctionality and functionality. The panel will examine judicial treatment of that distinction in the registration and litigation contexts.


Trademark law protects trade dress—the nonfunctional look and feel of a product or its packaging that identifies the source of the product to consumers.

IP counsel must understand the requirements for trade dress protection and how Trademark Trial and Appeal Board and federal court decisions treat the prerequisite of nonfunctionality in particular.

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 finding claimed trade dresses either nonfunctional or functional?
  • What steps can counsel take to increase their chances of proving nonfunctionality to obtain trade dress protection?
  • How does the USPTO address the functionality inquiry?


Davis, Theodore
Theodore H. Davis, Jr.

Kilpatrick Townsend & Stockton

Mr. Davis's practice focuses on domestic and international litigation and client counseling in the fields of...  |  Read More

Jacobs-Meadway, Roberta
Roberta Jacobs-Meadway

Ms. Jacobs-Meadway has more than 40 years of experience representing clients in a wide range of industries in...  |  Read More

Marvel, Janet
Janet A. Marvel

Pattishall McAuliffe Newbury Hilliard & Geraldson

Ms. Marvel protects brands, copyrighted works and domain names throughout the world. As part of her practice, Ms....  |  Read More

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