Latest / Financial Survival Network / Trade Dress in Global Disputes - Kristen Roberts #6159

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Trade Dress in Global Disputes - Kristen Roberts #6159 · Financial Survival Network

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  Speaker 1: Trade dress, on the other hand, is sort of how
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  Speaker 1: something looks like the theme of a restaurant for example.
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  Speaker 1: That's what trade dress really is and it can be protected.
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  Speaker 2: You are listening to Carrie Leutz's Financial Survival Network, where
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• 0:18
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• 0:21
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• 0:30
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  Speaker 4: Ever, and welcome.
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  Speaker 3: You are listening to and watching the Financial Survival Network.
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  Speaker 3: I'm your host, Carrie Lutz. Well, I'm gonna throw a
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  Speaker 3: new term at ye. I bet you don't know about it,
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  Speaker 3: but you should. You need to know about it. It's
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  Speaker 3: called trade dress. And here to explain more is Kristin Roberts,
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  Speaker 3: noted ip attorney from the West Coast in California. Christian.
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  Speaker 3: It's great to have you on the show. So what
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  Speaker 3: is trade dress and why should I care?
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  Speaker 2: Well?
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  Speaker 1: Trade dress is a method of protecting your intellectual property.
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  Speaker 1: It's another method. Trade dress effectively describes your look. You're
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  Speaker 1: esthetic the look in the feel of something. So it's
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  Speaker 1: not going to be your trademark, which is your name,
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  Speaker 1: your brand, your symbol that you use to identify yourself
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  Speaker 1: to the public, and you know what goods and services
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  Speaker 1: you sell. Trade dress, on the other hand, is sort
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  Speaker 1: of how something looks like the theme of a restaurant
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  Speaker 1: for example. That's that's what trade dress really is, and
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  Speaker 1: it can be protected, all right.
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  Speaker 3: So I'm thinking like if I wanted to start my
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  Speaker 3: own hot dog line and I come up with an
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  Speaker 3: Oscar meyer Wiener looking mobile, but I call it carries dogs,
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  Speaker 3: but it looks exactly the same other than the name,
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  Speaker 3: that could be a violation of trade dress there. Huh.
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  Speaker 1: Potentially, yeah, potentially, depending on whether or not the Oscar
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  Speaker 1: my Wiener is protected by trademark as well. But yes,
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  Speaker 1: overall that that can be it. I usually think of
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  Speaker 1: trade dress like when you go into a restaurant, like,
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  Speaker 1: for example, taco bell. For the example, you go into
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  Speaker 1: a taco bell, and you know what to expect when
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  Speaker 1: you walk into that taco bell because they all look
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  Speaker 1: a certain way, they all have a certain feel or
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  Speaker 1: like an in and out Burger for example, they all
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  Speaker 1: have those red stripes and the palm trees, and you
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  Speaker 1: can go inside and there's the color, the esthetic.
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  Speaker 4: That's the trade dress, right.
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  Speaker 3: So I think of like you go into CVS and
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  Speaker 3: they have their house brand, or you go into supermarkets
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  Speaker 3: they have their house brand, and if you didn't look
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  Speaker 3: at the name, you might not even know and you
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  Speaker 3: just grab the cheaper one, right.
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  Speaker 1: Yeah, And that's actually also those are trademarks, right, so
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  Speaker 1: their house marks are protected under trademark and trade dress
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  Speaker 1: is protected in a very similar way as a trademark
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  Speaker 1: would be.
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  Speaker 3: But like in China, you know, they knock off these
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  Speaker 3: cars and you can't tell a BMW from their ZNW
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  Speaker 3: or whatever. But in China they don't really enforce foreign
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  Speaker 3: intellectual property very effectively. In fact, they don't even care
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  Speaker 3: about it.
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  Speaker 1: Well, in China, for example, they have their own intellectual
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  Speaker 1: property system, and unfortunately our trademark trade dress, you know,
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  Speaker 1: intellectual property rights in the United States they only protect
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  Speaker 1: us within the United States borders. So if you want
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  Speaker 1: your stuff protected in other countries, you actually like to
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  Speaker 1: go to those countries and register and protect them.
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  Speaker 3: There, right, right, So, but it gets it's a slippery slope.
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  Speaker 3: Where does it end? Is what I'm thinking, Like, because
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  Speaker 3: so many things fall into this because we're all trying
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  Speaker 3: to brand, we're all trying to do our own identity.
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  Speaker 3: So if another lawyer kind of started knocking off your
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  Speaker 3: trade dress on your website and everything else, and his
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  Speaker 3: name was Chris Roberts, you know, you might have a
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  Speaker 3: case against them. It's it seems like it's it seems
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  Speaker 3: like it's too hard to define and too hard to
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  Speaker 3: say who's violating it because you might do it a
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  Speaker 3: little bit, but not enough. It requires like a judgment
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  Speaker 3: maybe that courts really aren't designed to handle, to really
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  Speaker 3: deal with, right well.
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  Speaker 1: Not necessarily, there actually happen cases where courts have been
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  Speaker 1: able to, you know, enforce and affirm a company's trade
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  Speaker 1: dress rights. The ones I can think of off the
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  Speaker 1: top of my head would be Taco Cabana. They're a
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  Speaker 1: really famous chain in Texas. They're like a text text
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  Speaker 1: next chain, and their case went all the way to
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  Speaker 1: the Supreme Court because they were saying, hey, this other
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  Speaker 1: restaurant is taking the colors and the esthetic and the
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  Speaker 1: decore and they're trying to apply it in the same
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  Speaker 1: way and it's confusing people into thinking that they're related
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  Speaker 1: to us in some way. And the court was able
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  Speaker 1: to say yeah, that's protectable because it is so unique.
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  Speaker 1: But I think where we run into issues is where
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  Speaker 1: the trade dress is maybe on the line where it's
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  Speaker 1: not super unique, where it's something that a lot of
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  Speaker 1: people are using or doing, and then someone says, well,
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  Speaker 1: I invented that, that's mine. That's really where you start
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  Speaker 1: to run into those issues of well, is it on
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  Speaker 1: the line?
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  Speaker 4: Is it too close? And how do we decide?
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  Speaker 3: Yeah, and that is a really good question because it's
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  Speaker 3: like it's a question of degree almost rather than of kind.
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  Speaker 3: Because you know, like food in the supermarket, the most
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  Speaker 3: eye catching colors are red and yellow and orange. So
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  Speaker 3: once you start with this, I don't know, I just
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  Speaker 3: see issues with it. So it's got to be an
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  Speaker 3: out and out theft for the courts to really they're
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  Speaker 3: going to want to step in, right, Well.
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  Speaker 1: It needs to be brought by somebody who believes that
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  Speaker 1: there's been an out and out theft, and then they
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  Speaker 1: have to present it in a way that is reasonable
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  Speaker 1: to a court.
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  Speaker 4: So when a court looks at it, they agree.
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  Speaker 1: I think if there are just a few items that
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  Speaker 1: are taken, that's a lot harder to prove. Now, if
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  Speaker 1: those items that are taken are really unique items. For example,
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  Speaker 1: you know the chip and Dal's dancers, they are pretty
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  Speaker 1: well known, they have pretty well known trade dress. Those
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  Speaker 1: little bow ties and those little cuffs trade Yeah.
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  Speaker 4: But those those are actually registered trade dress with the
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  Speaker 4: United States Pippark Office.
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  Speaker 1: But they had to really fight to get that protected
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  Speaker 1: as trade dress because how are you going to say.
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  Speaker 4: A bow tie and coffs are are recognizable?
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  Speaker 1: But because they've been using them for so long and
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  Speaker 1: everybody sees that on you know, one of those dancers,
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  Speaker 1: they automatically associate it with the Chipendale's brand. And so
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  Speaker 1: because of that, it is protectable and it would be
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  Speaker 1: something so even if though they're small things, they're little pieces,
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  Speaker 1: they are still considered as part of the trade dress
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  Speaker 1: and that thus protectable if they needed to bring a lawsuit.
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  Speaker 3: Okay, so this is an emerging field of the law.
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  Speaker 3: What's your got feel? How far will the court go
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  Speaker 3: to protect trade dress?
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  Speaker 1: Well, we have a really interesting case right now between
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  Speaker 1: two social media influencers that's pending in Texas. It's still
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  Speaker 1: you know, we still don't know how the case is
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  Speaker 1: going to unfold. But I think that this is a
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  Speaker 1: really interesting case because this is the first time we've
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  Speaker 1: seen this trade dress argument applied to the aesthetic of
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  Speaker 1: a social media page. This creator is alleging that her
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  Speaker 1: cream and beige aesthetic is being stolen by another creator
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  Speaker 1: on top of copyright infringement, I claim. So they're stacking
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  Speaker 1: the arguments, but the main one is, hey, she's stealing
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  Speaker 1: my vibe. And right now, you know, cream and beige.
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  Speaker 1: A lot of people use cream and beige. So if
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  Speaker 1: this were to go as far as this creator is
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  Speaker 1: trying to take it, I think it can have some
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  Speaker 1: pretty serious ramifications because a lot of the creator community
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  Speaker 1: is based on an inspiration, is based on sort of
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  Speaker 1: taking from things that we see from others and making
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  Speaker 1: it our own, and that could really sort of stymy that.
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  Speaker 3: Yeah, it just reminds me of law school. We learned
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  Speaker 3: hard cases make bay of law.
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  Speaker 1: Right listen, you know that is true.
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  Speaker 3: So it's gonna be interesting to see. So we're just
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  Speaker 3: in the preliminary phases. They're in discovery.
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  Speaker 1: Now, as I don't even think they've answered the lawsuit yet.
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  Speaker 1: I think they were given an extension of time to
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  Speaker 1: answer if I'm not mistaken, and I think that this
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  Speaker 1: was filed back in early summer of this year. So
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  Speaker 1: this is a very very new case that will unfold.
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  Speaker 1: Chances are it may settle, you know, most of these
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  Speaker 1: cases do. But you know, if it were to go
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  Speaker 1: all the way, it could really set some interesting precedent.
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  Speaker 4: I do think that there's a.
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  Speaker 1: Problem with going too broad in this type of a case,
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  Speaker 1: because we don't want.
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  Speaker 4: To chill speech.
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  Speaker 1: You know, we don't want people to stop being creative
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  Speaker 1: with the fear that they'll get soon.
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  Speaker 3: And probably in this case, strategic lawsuit just to get
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  Speaker 3: her to stop. And it's like a lot of people
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  Speaker 3: will look at a lawsuit and say, I don't need this.
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  Speaker 3: I'll change to blue and red and let the political
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  Speaker 3: parties come after me for violating their trade dress.
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  Speaker 4: Right, well, the red, white, and blue. You're pretty safe
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  Speaker 4: with that America aesthetic. Yeah, exactly.
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  Speaker 3: You know what's funny is like Rolex watches. When I
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  Speaker 3: was thinking about this, they have different colored dials and
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  Speaker 3: one is called a pepsi, another's a Coca cola, another's
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  Speaker 3: a Kermit the frog. It's green. So all of a sudden,
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  Speaker 3: once you start and those are nicknames. They aren't official
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  Speaker 3: Rolex names for the watches, but you know where does
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  Speaker 3: it end? Well, Hey, people want to find out more
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  Speaker 3: about you, Kristen, connect with you on the web. How
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  Speaker 3: do you do that?
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  Speaker 1: Well, I'm on all social media platforms. If anyone wants
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  Speaker 1: to find me at trustle Law. The spellings right there
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  Speaker 1: if they need to see it, and I'm also on
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  Speaker 1: my website tresselaw dot com.
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  Speaker 4: You can find me anywhere.
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  Speaker 1: Always drop me a line, ask me questions. I like
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  Speaker 1: to share videos and be on social as well.
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  Speaker 4: Great.
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  Speaker 3: Well, hey, if you've been a victim of trade dress
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  Speaker 3: appropriation I guess, for lack of a better term, infringement, infringement, infringement,
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  Speaker 3: then you'll want to talk to Kristin. Her link her
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  Speaker 3: law firms link is in the show notes to this
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  Speaker 3: interview on Financial Survival Network dot com. While you're there,
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  Speaker 3: sign up for your free newsletter. Question for Kristin myself.
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  Speaker 3: I am a recovering attorney after all. Just shoot me
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  Speaker 3: an email kl at Carrie LUTs dot com. Kristin, thanks
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  Speaker 3: for stopping by. We'll talk to you again.
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  Speaker 4: So thank you.
• 10:42
  Speaker 2: Thanks for listening to Carrie Letz's Financial Survival Network your
• 10:46
  Speaker 2: solution to today's trying times. For the latest, go to
• 10:50
  Speaker 2: Financial Survivalnetwork dot com Financial Survival Network now more than ever,