MANAGEMENT AND PROTECTION OF BRAND EQUITY IN PRODUCT CONFIGURATIONS

After many years of analyzing trademark law, Professor Davis turns his attention to examining the contours of ''trade dress'' protection for product configurations. In particular, Professor Davis notes that the scope of trade dress protection generally has been expanding in recen t years, culminating in the Supreme Court's decisions in Two Pesos, In c. v. Taco Cabana Inc. and Qualitex Co. v. Jacobson Products Co. Trade dress protection for product designs is all the more interesting beca use it is a relatively recent development. Historically, competitors f reely copied unpatented product configurations with no threat of repri sal. This freedom was reinforced by the Patent and Trademark Office, w hich refused to register configurations as trademarks. Professor Davis traces the development of trade dress law in this area and its distin ctions from similar, but distinguishable, patent and copyright remedie s. Trade dress protection can be differentiated from patent and copyri ght laws because it requires that the clair?led trade dress be used in commerce, distinctive, and nonfunctional. Because both the Supreme Co urt's jurisprudence and the federal Lanham Act have left holes in trad e dress law and the courts of appeals have varied in their analyses, P rofessor Davis examines the different approaches taken in each circuit , and what standards and types of evidence are appropriate to qualify a product design for trade dress protection. Specifically, on the dist inctiveness prong, claimants seeking trade dress protection may seek t o show the inherent distinctiveness of their designs, or they may seek recognition that their product configurations have achieved a seconda ry meaning entitling them to protection. From the standpoint of functi onality, courts may look at the utility and competitive necessity of t he configuration, as well as the existence of utility or design patent s covering it. Finally, Professor Davis considers the two standards fo r evaluating liability in product configuration trade dress cases: lik elihood of confusion and dilution. Likelihood of confusion has been th e traditional standard for evaluating unfair competition cases, but di lution theory, focusing on impermissible dilutions of the plaintiff's product configuration, offers a different alternative for relief, Bur although dilution theory is promising, it is still in ifs relative inf ancy, and its scope in the product configuration context in particular has yet to be defined by the courts. In sum, Professor Davis's analys is of trade dress protection Sor product configurations offers a pract ical understanding of the limits and possibilities of current trade dr ess law for protecting brand equity in unconventional designations of origin.