Trade dress can be a very powerful form of protection, but only if a company understands how to gain and maintain it.
Bon Appétit out with first ‘Drinks’ issue in over 50 years), Louis Vuitton Malletier has failed to prevail in its seven-year battle to maintain trademark rights to its Damier Azur checkerboard trademark.
As a form of trademark, trade dress can extend to designs of packaging, portions of products and even entire products. Product design trademarks only become distinctive by building up commercial recognition, termed “acquired distinctiveness” . So initially, such a trademark would not be subject to protection under trademark law.
Generally, it takes considerable time to attain secondary meaning, so it is crucial that the brand maintain good records of its sales of the product, the appearance of all design variations Second Board of Appeal correctly ruled that the checkboard pattern was not inherently distinctive. Louis Vuitton appealed the matter in an attempt to prove that the mark had instead acquired distinctiveness, therefore defeating a claim that the registration of the mark was invalid.
Although the court made a point to say that it would be unreasonable to require proof that a mark had acquired distinctiveness in each individual member state within the E.U.
The Board of Appeal found that this was only a “very small” number for the specified countries. In the present case, Louis Vuitton stated that this evidence is only a “selection” of invoices, and that the actual volume of sales to persons residing in the member states concerned is, in fact, higher.
Louis Vuitton did not submit information capable of demonstrating that a significant proportion of the relevant public in those member states was exposed to those advertising campaigns, concerning,the number of magazines distributed in those member states, the frequency and the times at which advertisements were broadcast on television or radio channels and statistics on the audience figures achieved.
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