This Comment discusses the controversy over whether secondary meaning should be a prerequisite for trademark protection of product packaging, in light of Wal-Mart Stores, Inc. v. Samara Bros. The United States Supreme Court held in Wal-Mart that secondary meaning is a prerequisite for trademark protection of product design, limiting its earlier decision in Two Pesos, Inc. v. Taco Cabana, Inc. In discussing Wal-Mart's application to trademark protection for product packaging, this Comment focuses on the difficulty of distinguishing between product packaging and product design. This Comment argues that secondary meaning should be a prerequisite for trademark protection of product packaging; in fact, courts should not use the inherent distinctiveness standard in determining whether trade dress deserves trademark protection. It argues that courts should not use the inherent distinctiveness standard in trade dress cases because, unlike trademarks, trade dress is not used to identify source; rather, marketers choose particular product packaging or design to make their product more appealing.
Jennifer L. Barwinski,
Trade Dress: Should Only the Secondary Meaning Trade Dress Standard Apply to Product Packaging? Or Should Courts Continue to Use the Inherently Distinctive Standard?,
8 Marq. Intellectual Property L. Rev. 119
Available at: http://scholarship.law.marquette.edu/iplr/vol8/iss1/4