Travelers Indemnity Co. of America [168 F3d 256 (6th Cir. 1999)], Prom Dresses 2012 decision the First Circuit said could be read to exclude any possibility of advertising injury based on a trademark or trade dress violation. This the First Circuit would not do.
Obtaining trade dress protection for a patented product or packaging configuration should be viewed as cheap prom dresses unexpected benefit through a combination of careful patent drafting and effective marketing and promotion. Trade dress protection for product or packaging configurations should not be viewed as the primary goal with patent protection.
As a possible fallback position or one may find that there is nothing to fall back to except a crowded and competitive marketplace full of competitors who have tiffany on sale unabashedly copied the product or packaging design. Owring a patent is like owning a 20-mile stretch of freeway.
The patent holder can cruise along the entire stretch with no other cars, no roadblocks, and no tollbooths. However, at the end of the 20-mile private freeway is an interchange that merges into a heavily traveled and often congested public thoroughfar Tiffany Notes on Sale. It is no wonder that many patent holders would like to avoid the congested freeway after having a stretch all to themselves.
At about mile 18 or 19 of the private freeway, many patent holders start looking for an alternative Return to Tiffany Cuff links route around the public thoroughfare known as the Competitive Market Expressway. Until very recently, the Trade Dress Bypass was a very attractive alternative route that in some cases offered patent holders a road that was as free and open as the stretch of highway on which they had been traveling.
However, the Trade Dress Bypass had no end. But a series of US Supreme Court cases and an amendment to the Lanham Act1 have all but closed the Trade Dress Bypass to patent holders. They now face a "TrafFix"2 jam of a full and free competitive market with competitors who will not hesitate to virtually Return to Tiffany Double Heart Pendant copy the patent holder's product and sell it for a fraction of the price previously charged by the patent holder.