Incontestable Trademark Registrations: No Guarantee

Law360, New York (November 1, 2010, 12:59 PM EDT) -- Protecting a product design in the United States is not easy. Unlike most industrialized countries, the U.S. has no system of design registration. Copyright law does not protect “useful articles.” Design patents take time to obtain and are limited in duration. Asserting rights in an unregistered trade dress under Section 43(a) requires plaintiffs to meet difficult burdens of proving secondary meaning and nonfunctionality. So obtaining a Principal Register registration for a product configuration has appeared to be the best bet.

But three recent decisions from the...
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