Is anyone familiar with "trade dress" laws?

[VerticallyEnhanced]

There is a candle maker that has gone from copying a few of my things to flat out trying to duplicate my entire set up at shows. I have a VERY distinctive "look" to my booth. Very distinctive. I have been doing this particular show for six years (same design) and she has been there for two. I have noticed more and more of my elements creeping in to her design. I blew it off. But I have just received my SIXTH email from a customer from the town where the show is held saying "I thought it was you...unitl I got up there." It is identical down to the jars, fabric, colors, lay out. One customer even went as far as to buy a candle and take it home only to find out it sucked. She emailed me asking why I had changed my candles, my name and labels a bit. I was scratching my head...then I finally figured it out. She thought I had hired someone to run my booth for me. Crazy...

Anyone dealt with this? Followed through with trade dress complaint?

I am kind of getting past the "eh whatever" to being flat out pissed.

Here is an over view of trade dress...sure seems to fit:

TRADE DRESS LAW OVERVIEW “Trade dress” refers to the total image of a product, including features such as size, shape, color or color combinations, texture, graphics, or particular sales techniques.

Protection for trade dress is similar to protection for trademarks and service marks.

Trade Dress Infringement in Violation of Section 43(a) of the Lanham Act

The purpose of trade-dress protection is to enable a business to identify itself efficiently as the source of a given product through the adoption of a mark which may be in the form of a slogan, symbol, ornamental design or other visual insignia.

In order for a claimant to prevail on its Lanham Act claim, it must establish by a preponderance of the evidence the following:

1. That the trade dress of the claimant’s product or services is inherently distinctive or has acquired secondary meaning;

2. That the claimant’s trade dress is primarily non-functional; and

3. That alleged infringer’s trade dress is confusingly similar, causing a likelihood of confusion in the marketplace.

First Element – Inherent Distinctiveness or Secondary Meaning

A trade dress in inherently distinctive if it is fanciful, arbitrary, or suggestive.

A trade dress has acquired secondary meaning when a consumer associates the design feature with a particular producer. In order to determine whether secondary meaning exists, one may consider the following factors:

1. The amount and manner of advertising of the claimant’s products or services;

2. The volume of sales for the claimant’s products or services;

3. The length and manner of use of the products or services;

4. Direct consumer testimony;

5. Consumer surveys;

6. Evidence of intentional copying; and

7. Evidence of misdirected inquiries.

Second Element – Trade Dress is Primarily Nonfunctional

A nonfunctional design feature is a mere arbitrary embellishment or a form of dress for goods that is primarily adopted for purposes of identification and individuality and that is unrelated to basic consumer demands in connection with the product. A non-functional design feature can be a slogan, a symbol, a combination of words and symbols, an ornamental feature, a distinctive shape, or something else intended to remind a consumer of a brand.

Functional features are not those which serve a function, but are those that a competitor would find necessary to include in his product in order to effectively compete in the market. A feature is also functional when it is costly to do without or to design around, rather than one that is costly to have.

Third Element – Likelihood of Confusion

If the claimant has established by a preponderance of the evidence that the trade dress of its products or services have acquired secondary meaning or is inherently distinctive, and are also nonfunctional, then one must consider whether the alleged infringer’s use of the claimant’s trade dress is likely to cause confusion in the marketplace. This means that the alleged infringer’s use of the claimant’s trade dress is likely to confuse a reasonable purchaser about the source of the alleged infringer’s products or services or the claimant’s connection with them.

To determine whether a likelihood of confusion exists, you may consider the following factors:

1. The degree of similarity between the trade dress of the claimant’s products or services and the trade dress of the alleged infringer’s products or services;

2. The similarity between the products in question.

3. Whether the products or services are distributed through similar channels of trade and to similar ultimate customers;

4. The degree of care likely to be exercised by consumers (as evidenced by the amount spent to purchase the products or services and the atmosphere surrounding the products or services in their normal setting);

5. The strength of the secondary meaning of the claimant’s trade dress in the public mind;

6. Evidence of actual confusion; and

7. The alleged infringer’s intent to pass of their products or services as those of the claimant.

However, none of the foregoing factors in itself disposes of the likelihood of confusion question.

Actual Confusion

The most positive and substantial proof of likelihood of confusion is actual confusion, and very little proof of actual confusion is necessary to prove likelihood of confusion. However, it is not necessary for there to be actual confusion for you to find a likelihood of confusion.

Damages for Trade Dress Infringement

If a judge or jury finds that the alleged infringer has violated Section 43(a) of the Lanham Act, then the claimant is entitled to recover any damages sustained by the claimant as well as the infringer’s profits realized in connection with its infringing products or services, and the Court may award treble damages where such violation was willful.

Recovery for trademark infringement is not limited to cases in which the amount of actual damages is demonstrated. Rather, the claimant may recover profits reaped by the infringer from its infringing activity. In assessing profits, the claimant is only required to prove the infringer’s sales. The burden then shifts to infringer to prove costs or deductions.

Exceptional Case

Exceptional cases are those “in which the acts of infringement can be characterized as malicious, fraudulent, deliberate, or willful.” Treble damages and attorneys’ fees may be awarded by the court in exceptional cases.

[blazerina]

I know nothing.... but... it sounds like an 'Exceptional Case' to me! I probably don't need to tell you that you should print out that customer email... hopefully the date will show or maybe have it notorized?? Hopefully you have records of your 6 yrs with this particular show... all that kind of stuff. I imagine it would be helpful in the coming months/years:undecided

I don't blame you one bit for being upset. They say immitation is flattery. But that only goes so far. Too much of it and it becomes deceitful and malicious. Not to mention shameful.

Makes me wish you could strap on a hidden recorder... walk up to her booth all sweet like and compliment her....' Ohh... I just love your style!!' Then she will compliment you back most likely... but what you just did then was get her to acknowledge that she is also familiar with yours, effecitively removing her future arguement of being unaware of YOUR style and thus not possibly copying it.

Heh heh heh.

Anyhoo, lol... I'll be wishing you luck and keep us posted what ever you decide to do.

[bells4shells]

If you know where this lady is and how to get a hold of her, I would definately send a cease and desist order. If you've got more than one person telling you they thought it was you and a customer even complaining about product thinking it was you... it has to stop. Protect yourself and your product.

[islandgirl]

WHOA!!!! That is just plain wrong!!

I would talk to the Fairs Director and let them know about this.

Maybe they will "BUMP" your copy cat for next years show!!

So sorry to hear this:cry2:. Let us know how it turns out!!

[Vio]

What nerve!!!??? I can't imagine how someone would think that something like that would go unnoticed, and dare to be in the same place as you at the same time.

Maybe you need to start adding words like "the original, don't be fooled by immitators trying to fool you into thinking you are buying my products" or something.

[VerticallyEnhanced]

I would talk to the Fairs Director and let them know about this.

Already did...have an email into him.

You know..I don't want any money from her. I just want her to stop. In other words, use the mush in-between your ears to come up with your own freaking ideas!

I know there is always a bit of emulating going on in our industry. I mean, we all look at industry trends in the candle arena. However, I really try to be as original as possible and come up with designs that will set me apart from others. I have worked very hard to come up with my own image and it just royally chaps my ass that someone is literally taking the entire concept and running with it. Not "similar" but down right identical.

[Stella1952]

I think sending her photos of the two booths and a copy of the "Trade Dress" law and asking her to cease and desist is about all you can practically do. Unless we're talking about a LOT of money here, the court and attorney's fees would not make it practical. Also, if the amount of business she snaked from you (how to prove this amount?) isn't much, dollar-wise, the award wouldn't be either.

Might be better just to send the warning and change a couple of key elements about your booth and see if she follows suit. THEN you might have an even better case and could also complain to the operators of the shows you do that she's setting up a "replica" booth...

Then let the air out of her tires...

[Vio]

What's messed up is that she could sell someone something, and they think it's you, and it could damage your business.