Tabberone is pronounced tab ber won not tay ber own

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Trade Dress

Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress is a form of intellectual property. As the United States Supreme Court recognized in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992), protectable trade dress includes the shape and general appearance of an establishment, including the decor, the menu and other features reflecting on the total image. The Supreme Court held that trade dress, in the form of a product's design (as opposed to packaging), can never be inherently distinctive as a matter of law. Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 212 (2000). Rather, a design is distinctive and therefore protectable, only upon a showing of secondary meaning. Id. at 216. The central inquiry for secondary meaning is whether, "in the minds of the relevant consumers, the primary significance of the [beaver] design is to identify the source of the product," rather than the product itself. I.P. Lund Trading Aps v. Kohler Co., 118 F. Supp. 2d 92, 104 (2000)("Lund III"). In order for trade dress to be protected under § 43(a), a plaintiff must prove that the dress is: (i) used in commerce; (ii) non-functional; and (iii) distinctive. Lund, 163 F.3d at 36. Distinctiveness may be either "inherent," that is, the "intrinsic nature [of the trade dress] serves to identify a particular source," Wal-Mart, 529 U.S. at 210 (citing Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992)), or "acquired," i.e., the trade dress has acquired a "secondary meaning" whereby the public views its "primary significance . . . as identify[ing] the source of the product rather than the product itself," Id. at 211 (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851 n.11 (1982)). Finally, to prove infringement of protected trade dress, the plaintiff must show that another's use of a similar trade dress is likely to cause confusion among consumers as to the product's source. Lund, 163 F.3d at 43-44. [Emphasis added]