Did SCOTUS Kill Product Design Trade Dress?

Law360, New York (November 3, 2009, 2:53 PM EST) -- Some practitioners think the U.S. Supreme Court tried to kill product design trade dress with two decisions in the early 2000s. Did the court succeed? Is product design trade dress dead yet?

Courts are in agreement that the three core elements of a claim of infringement of product design trade dress are:

1) That the alleged trade dress is distinctive;

2) That the alleged trade dress is not functional; and

3) That the accused product design is likely to cause consumer confusion.

In two cases in...
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