The Federal Circuit Redefines Secondary Meaning and Infringement for Product Trade Dress in Converse

摘要

Whether a trademark owner's mark has acquired secondary meaning is an important question litigated in many cases involving trademark validity. The Federal Circuit's Converse opinion created a new test "for secondary meaning and placed limits on trade dress infringement. The Federal Circuit opinion found registered trade dress carries a presumption of secondary meaning only prospectively from the date of registration. Prior to the date of registration, the mark owner must show acquired secondary meaning prior to the first infringing use for each accused infringer. The Federal Circuit articulated a limitation on product trade dress infringement, claiming product design trade dress can only infringe if it is substantially similar to the protected trade dress, which arguably deviates from the likelihood of confusion standard set forth by other courts.