Trade Dress Rights Enforcement: Prosecuting Infringement Claims

Proving Protectable Trade Dress and Likelihood of Confusion, Defeating Defenses

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

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Conducted on Tuesday, June 28, 2016

Recorded event now available

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Course Materials

This CLE course will provide guidance to IP counsel on the enforcement of protectable trade dress. The panel will examine the requirements for trade dress infringement and will review recent cases. The panel will offer best practices for enforcing trade dress rights.


Trade dress refers to the total image and overall appearance of a product and/or packaging. To be protectable, trade dress must be either inherently distinctive or have acquired distinctiveness. Further, trade dress is not protectable if it is functional. A federal claim for trade dress infringement may be brought under Section 43(a) of the Lanham Act and claims can also be brought under state law.

Trade dress infringement requires a showing of a likelihood of confusion as to source, sponsorship or affiliation as determined by a balancing of factors such as the similarity of the designs and channels of trade. Defendants are likely to raise defenses if these requirements are not met. They may also raise fair use and brand name defenses.

There has been a lack in uniformity in how the courts have treated trade dress infringement claims. There are circuit splits on several issues, including the presumption of irreparable harm, aesthetic functionality, and the standard for obtaining monetary damages. Counsel and their clients should carefully consider how courts are addressing these issues when preparing to file infringement actions.

Listen as our authoritative panel discusses the pre-filing considerations and issues that the trade dress owner should consider, as well as the potential defenses and remedies. The panel will examine how the courts are treating these issues and will offer best practices for enforcing trade dress rights.



  1. Pre-filing considerations and issues that the trade dress owner should consider
  2. Potential defenses to overcome
  3. Remedies
  4. Best practices for enforcing trade dress rights


The panel will review these and other key issues:

  • How are the courts addressing trade dress infringement claims?
  • What must counsel demonstrate to enforce trade dress rights to protect the look and feel of a product design, product packaging or website in an infringement action?
  • What are the key tactics for counsel in protecting product and packaging designs against infringement?


Kristin J. Achterhof
Kristin J. Achterhof

Katten Muchin Rosenman

Ms. Achterhof counsels clients on a wide variety of complex IP litigation, including the prosecution and defense...  |  Read More

Cohen, Barry
Barry L. Cohen

Royer Cooper Cohen Braunfeld

Mr. Cohen focuses on IP litigation and unfair competition, among other areas. He develops litigation strategies that...  |  Read More

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