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Protecting Designs through Trademarks and Trade Dress at the USITC

By Charles J. Hawkins and Patrick J. Stafford

©2017. Published in Landslide, Vol. 9, No. 4, March/April 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Like all areas of intellectual property, trademark law has experienced significant and wide-ranging developments in 2016. One particular area of interest is the enforcement of trademark and trade dress rights at the U.S. International Trade Commission (USITC). This article analyzes a recent investigation from the USITC, Certain Footwear Products, Inv. No. 337-TA-936, in which Converse sought to enforce registered trademarks as well as general trade dress rights covering its Chuck Taylor All Star shoes against a number of respondents, including Wal-Mart, Skechers, and New Balance. While the USITC found no violation for one trademark and associated trade dress, the USITC did find a violation of two registered and common law trademarks asserted by Converse. While the law remains in flux, this case serves as an interesting study on the use of trade dress and trademarks to protect product designs. The result of this case also serves as a useful aid in assessing proper protection for fashion products and designs.

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