Chesebrough decision strips away protection (sidebar)

Some advice for protecting brand trade dress were described by intellectual property attorney Paul Kilmer in a recent Advertising Age article. He strongly recommends that companies act on any suspected infringement, even if done by a small competitor, because bigger companies may follow. If the "look" identifies the entire product category, policing trade dress will be difficult. Make your product's trade dress not only distinctive, but exclusive. Design patent protection or the registration of your brand's look as a mark will help. But also call attention to it. Kilmer suggests that advertising, trade promotion and even label copy can be used to reinforce the message (". . .the one in the red box"). To successfully sue, Kilmer recommends that companies collect and compile evidence that consumers recognize your trade dress, via focus groups, letters or 800-number communications records. Even more important-but harder to find-will be evidence that the other package causes confusion in consumer's minds. This will help your company in court because the "likelihood of confusion" is the true test for infringement.