For this month’s #CueCards, it’s all about the shoes...Converse sneakers sued a number of designers for selling knock offs of its Chuck Taylor design. Converse protected this design by filing a trade dress registration with the trademark office. A product design cannot ordinarily be registered without demonstrating acquired distinctiveness through long term exclusive use. The registration gives a presumption of acquired distinctiveness. During the lawsuit, the question became what if the infringement started before Converse’s filing date, does Converse enjoy this presumption before its filing date? The appeals court said no —placing Converse’s claims in jeopardy. This case is an example of how a broad view toward IP protection might have improved Converse’s position. When considering unique products, layers of protection can be applied. A design patent can protect the unique appearance of the shoe and provide exclusive use during the patent’s life to support a trade dress application. A design patent provides 14 years of exclusivity allowing the owner to sell its product and acquire goodwill in the unique product shape. This 14 year period likely would be more than enough to show acquired distinctiveness placing a trade dress application on good footing! hashtag#designhashtag#trademarks
