3rd Circ. Won't Budge On Cookie-Shape Trade Dress Ruling

Law360 (January 26, 2021, 5:09 PM EST) -- The Third Circuit ruled again Tuesday that the shape of a Japanese cookie stick called Pocky was ineligible for trade dress protection, mostly standing by an earlier decision that had been criticized by both trademark experts and food companies.

In an unusual move, a three-judge panel agreed to vacate its previous ruling in October, which said the shape of Pocky — a thin cookie stick dipped in chocolate — was too "functional" to be locked up as proprietary trade dress.

But a new replacement opinion issued Tuesday reached the same conclusion, and made only minor changes to the language of the...

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