Kerry Lutz and Kristen Roberts discussed the concept of trade dress, emphasizing its importance in safeguarding the visual identity of products and services, with examples ranging from restaurant themes to house brands in supermarkets. They highlighted the complexities of enforcing trade dress rights internationally and the challenges in defining and proving violations, illustrated by the distinctive attire of Chippendales dancers. The conversation also addressed the evolving application of trade dress in social media aesthetics, particularly in light of a pending case in Texas involving two influencers, which raises questions about copyright infringement and the implications for the creator community. They examined the potential consequences of such legal actions on creativity and expression, the motivations behind lawsuits, and the necessity of balancing intellectual property protection with fostering inspiration and innovation.
Find Kristen here: trestlelaw.com
Find Kerry here: FSN and here: Inflation.Cafe
Trade dress, on the other hand, is sort of how something looks like the theme of a restaurant, for example. That's what trade dress really is, and it can be protected. You're listening to Carrie Lutz's Financial Survival Network, where you get valuable information you just can't find anywhere else. To thrive in today's trying times, you need the Financial Survival Network, now more than ever. Go to financialsurvivalnetwork.com and get your free newsletter and gift, Financial Survival Network. Now more than ever. And welcome. You are listening to and watching the Financial Survival Network on your host, Carrie Lutz. Well, I'm going to throw a new term out. Yeah, I bet you don't know about it, but you should. You need to know about it. It's called trade dress. And here to explain more is Kristin Roberts, a noted IP attorney from the West Coast in California. Kristin, it's great to have you on the show. So what is trade dress and what should I care? Well, trade dress is a method of protecting your intellectual property. It's another method. Trade dress effectively describes your look. You're aesthetic. The look in the feel of something. So it's not going to be your trademark, which is your name, your brand, your symbol that you use to identify yourself to the public and what goods and services you sell. Trade dress, on the other hand, is sort of how something looks like the theme of a restaurant, for example. That's what trade dress really is, and it can be protected. All right, so I'm thinking like, if I wanted to start my own hot dog line, and I come up with an Oscar Meyer wiener looking mobile, but I call it Carrie's dogs, but it looks exactly the same other than the name. That could be a violation of trade dress there, huh? Potentially, yeah, potentially, depending on whether or not the Oscar Meyer wiener is protected by trademark as well. But yes, overall, that that can be it. I usually think of trade dress like when you go into a restaurant, like, for example, Taco Bell, for example, you go into a Taco Bell, and you know what to expect when you walk into that Taco Bell, because they all look a certain way. They all have a certain feel, or like in an outburger, for example, they all have those red stripes and the palm trees, and you can go inside and there's the color, the aesthetic, that's the trade dress. Right. So I think of like, you go into CVS and they have their house brand, or you go into supermarkets, they have their house brand. And if you didn't look at the name, you might not even know, and you just grab the cheaper one, right? Yeah, and that's actually also those are trademarks, right? So their housemarks are protected under trademark and trade dress is protected in a very similar way as a trademark would be. But like in China, you know, they knock off these cars, and you can't tell the BMW from their ZNW or whatever. And but in China, they don't really enforce foreign intellectual property very effectively. In fact, they don't even care about it. Well, in China, for example, they have their own intellectual property system. And unfortunately, our trademark trade dress, you know, intellectual property rights in the United States, they only protect us within the United States borders. So if you want your stuff protected in other countries, you actually like to go to those countries and register and protect them there. Right. Right. So but it gets it's a slippery slope. Where does it end? Is what I'm thinking like, because so many things fall into this, because we're all trying to brand, we're all trying to do our own identity. So if another lawyer kind of started knocking off your trade dress on your website and everything else, and his name was Chris Roberts, you know, you might have a case against them. It's it seems like it's it seems like it's too hard to define and too hard to to say who's violating it because you might do it a little bit. But not enough. It requires like a judgment, maybe that courts really aren't designed to to handle to really deal with, right? Well, not necessarily. There actually have been cases where courts have been able to, you know, enforce and affirm a company's trade dress rights. The ones I can think of off the top of my head would be Taco Cabana. They're a really famous chain in Texas. They're like a text next text next chain. And their case went all the way to the Supreme Court because they were saying, Hey, this other restaurant is taking the colors and the aesthetic and the decor, and they're trying to apply it in the same way. And it's confusing people into thinking that they're related to us in some way. And the court was able to say, yeah, that's protectable because it is so unique. But I think where we run into issues is where the trade dress is maybe on the line where it's not super unique, where it's something that a lot of people are using or doing. And then someone says, well, I invented that. That's mine. That's really where you start to run into those issues of, well, is it on the line? Is it too close? And how do we decide? Yeah, and that is a really good question because it's like, it's a question of degree almost rather than of kind because, you know, like food in the supermarket, the most eye-catching colors are red and yellow and orange. So once you start with this, I don't know, I just see issues with it. So it's got to be an out and out theft for the courts to really, they're going to want to step in, right? Well, it needs to be brought by somebody who believes that there's been an out and out theft. And then they have to present it in a way that is reasonable to a court. So when a court looks at it, they agree. I think if there are just a few items that are taken, that's a lot harder to prove. Now, if those items that are taken are really unique items, for example, you know, the chip and dales dancers, they are a pretty well-known, they have pretty well-known trade dress, those little bow ties and those little cuffs. Trade them past there. But those were actually registered trade dress with the United States Public Park office, but they had to really fight to get that protected as trade dress because how are you going to say a bow tie and cuffs are recognizable, but because they'd been using them for so long, and everybody sees that on, you know, one of those dancers, they automatically associate it with the chip and dales brand. And so because of that, it is protectable, and it would be something. So even though they're small things, they're little pieces, they are still considered as part of the trade dress and thus protectable if they needed to bring a lawsuit. Okay. So this is an emerging field of the law. What's your gut feel? How far will the court go to protect trade dress? Well, we have a really interesting case right now between two social media influencers that's pending in Texas. It's still, you know, we still don't know how the case is going to unfold. But I think that this is a really interesting case because this is the first time we've seen this trade dress argument applied to the aesthetic of a social media page. This creator is alleging that her cream and beige aesthetic is being stolen by another creator on top of copyright infringement, I claim. So they're stacking the arguments, but the main one is, hey, she's stealing my vibe. And right now, you know, cream and beige, a lot of people use cream and beige. So if this were to go as far as this creator is trying to take it, I think it can have some pretty serious ramifications because a lot of the creator community is based on an inspiration is based on sort of taking from things that we see from others and making it our own. And that could really sort of stymie that. Yeah, just the reminds me of law school. We learned hard cases make bad law, right? Listen, you know, that is true. So it's going to be interesting to see. So we're just at the preliminary phases. They're in discovery now. I guess I don't even think they've answered the lawsuit yet. I think they were given an extension of time to answer if I'm not mistaken. And I think that this this was filed back in early summer of this year. So this is a very, very new case that will unfold. Chances are it may settle. You know, most of these cases do. But you know, if it were to go all the way, it could really set some interesting precedent. I do think that there's a problem with going too broad in this type of a case because we don't want to chill speech. You know, we don't want people to stop being creative with the fear that they'll get sued. And probably, in this case, strategic lawsuit just to get her to stop. And it's like a lot of people will look at a lawsuit and say, I don't need this. I'll change to blue and red. And let the let the political parties come after me for violating their trade dress, right? We'll do red, white and blue. You're pretty safe with that. So America aesthetic. Yeah, exactly. You know, it's funny is like Rolex watches. When I was thinking about this, they have different colored dials. And one is called a Pepsi. Another is a Coca Cola. Another is a Kermit, the Frog. It's green. So all of a sudden, once you start, and those are nicknames, there are official Rolex names for the watches. But you know, where does it end? Well, hey, people want to find out more about you, Kristen, connect with you on the web. How do you do that? Well, I'm on all social media platforms. If anyone wants to find me at trestlelaw, the spelling's right there if they need to see it. And I'm also on my website trestlelaw.com. You can find me anywhere. Always drop me a line. Ask me questions. I like to share videos and be on social as well. Great. Well, hey, if you've been a victim of trade dress appropriation, I guess, for lack of a better term, infringement infringement, infringement. Then you'll want to talk to Kristen, her link, her law firm's link is in the show notes, this interview on financial survival network.com. While you're there, sign up for your free newsletter question for Kristen and myself. I am a recovering attorney. After all, just shoot me an email kl@carrylutz.com. Kristen, thanks for stopping by. We'll talk to you again soon. Thank you. Thanks for listening to Carrie Lutz's Financial Survival Network, your solution to today's trying times. For the latest go to financialsurvivalnetwork.com. Financial Survival Network. Now more than ever. (upbeat music)
