Trade Dress Infringement

“‘[T]rade dress “refers to the ‘total image of a product’ and may include features such as size, shape, color, color combinations, texture or graphics.” . . . The design of a product, as well as its packaging, both are part of its ‘trade dress.’ . . . ‘A seller's adoption of a trade dress confusingly similar to a competitor's constitutes unfair competition that is actionable under section 43(a) of the Lanham Act.’” Magic Kitchen LLC v. Good Things Internat., Ltd., 153 Cal. App. 4th 1144, 1155 (2007).

“To establish trade dress infringement, [a plaintiff] must show

(1) that its product design is non-functional,
(2) that the design is inherently distinctive or has acquired a secondary meaning, and
(3) that there is a likelihood of confusion. [Citation.]

Because affording trade dress protection to product designs may hinder legitimate competition, the Ninth Circuit has advised district courts to evaluate such claims with greater scrutiny than claims involving other forms of trade dress.’”

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