Dustin Marlan, ‘Tertium Quid Unveiled: Trade Dress and Service Design’, 58 UC Davis Law Review (forthcoming, 2024/2025), available at SSRN (11 March 2024). In an oft-quoted moment in the Supreme Court’s Wal-Mart v Samara opinion, Justice Scalia articulated three types of trade dress: product packaging, which can be protectable from its earliest use if deemed inherently distinctive; product design, which is only ever protectable upon a showing of secondary meaning; and a third category, ‘some tertium quid that is akin to product packaging’, which is also capable of being inherently distinctive … (more)
[Alexandra Roberts, JOTWELL, 4 September 2024]
Leave a Reply