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Dream Cruise – Trademark issues

Written by Daniel P. Dalton on August 10, 2011 Category: Business Law & Transactions
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Who can legally use the name “Dream Cruise?” Dalton & Tomich plc respond to trademark issues surrounding the commerical use of the name in M-LIve. MLive_AttorneyDreamCruiseLive.pdf

Sure, it is more of a trademark / copyright issue.

Products, like people, have personality — and a winning personality is a trademark owners most valuable asset. A key element of a product’s personality, or brand image, is its packaging. Under trademark law, the total commercial image of a product is known by the term “trade dress.” Trade dress refers to the manner in which a product — or place of business — is “dressed up” to go to market. It’s what differentiates one brand of cola from another. While “innocent” intent is no defense to either trademark or trade dress infringement, “bad faith” may either prove likelihood of confusion or raise an inference of likelihood of confusion. Trade dress is governed by the same set of laws that protects unregistered trademarks. Like a traditional trademark, trade dress is a form of commercial shorthand that provides a “source-associating cue” for the unthinking purchaser. However, unlike traditional trademark law that protects words or logos, trade dress law protects the total packaging and design of a product. To be protectable, trade dress must be inherently distinctive or possess “secondary meaning” (the public associates the packaging with a single source). Further, the trade dress must be non-functional. As a rule, for trade dress to be protected, it must be instantaneously identifiable in the mind of the

purchaser. This is usually the function of strong sales over a long period, supported by consistent advertising, promotion and publicity.

Protectable trade dress is infringed when a “likelihood of confusion” exists between defendant’s trade dress and plaintiff’s trade dress. The similarity between trade dress is gauged by the “ordinary buyer” standard. Would “unthinking” buyers believe both products

came from the same source? If the same overall impression leads the ordinary buyer to that conclusion, infringement probably exists. Among the factors a court will weigh to determine likelihood of confusion are: The strength or distinctiveness of the trade dress; The intent to copy and “cash in” on plaintiff’s reputation and goodwill ; The similarity in products ; Evidence of actual confusion; Degree of care exercised by buyers, and the area, manner and degree of concurrent use.

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