AbstractOver the last sixty years, courts and the USPTO have engaged in an ill-advised expansion of trademark subject matter. Where once only words or emblems attached to a product could serve as a trademark, today a products design or packaging itself may receive such protection. This expansion was and is a mistake. While there may be rare cases where a products design or packaging conveys brand-specific information and could receive protection without impairing competitors ability to offer substitutes, such cases are the exception and not the rule. By recognizing trade dress protection within the trademark law framework, courts and the USPTO have made the exception into the rule. Trade dress protection today has become an anticompetitive weapon that forecloses competition with no redeeming benefits. Courts and the USPTO should therefore correct their mistake and deny trade dress substantive protection under the Lanham Act, as Congress intended.
