Originally Posted by Tallest Skil
Why? (also, the first iPad ad ever) It doesn't look like that's a requirement, just an option.
Legally, not an absolute requirement. In real life, detailing the amount and type of advertising is usually #1 on the list of what a court wants to see as one of the three legs for proving trade dress infringement.
Distinctiveness and/or secondary meaning. Is the design unique? Was it used distinctively for a long time? Do people only associate the design with a particular company? How much advertising did the company do about the design? (Classic example of these is the Coke bottle shape.)
This requirement is why Apple revealed their advertising budget in that last big trial.
Non-functionality. The design has to be merely ornamental. If a design is required for a certain type of product to be functional, or it greatly affects the cost to make it a different way, then you cannot protect that design. For example, some courts have considered rounded corners to be functional, whereas Apple has asserted that they are not.
This requirement is also considered the reason why Apple shipped iPads with only four icons showing in the dock, even if it looks strange to waste so much space. They do it to try to back up their legal assertion that showing four icons is an "ornamental" choice and not just functionally related to screen size. (e.g. in phones).
Likelihood of confusion. This is the last leg, considered only after the first two pass. Would a normal customer, exercising normal care, be confused? (People don't buy based on power plugs, nor do they usually get to take a package off the shelf in the case of phones and tablets.) Can you prove cases of actual confusion? (Not just a salesperson pushing the competition.) Is there a prominent brand name? (Excedrin PM sued Tylonel PM for using the same suffix and packaging. Court ruled that the brand names Excedrin and Tylonel were so well known that they took precedence in avoiding confusion.)
It sounds easier than it is. So far, Apple has not won any cases over iPad trade dress. Even the California $1B jury found against infringement. That's partly why Apple is switching to all utility patents in the next trial.
Edited by KDarling - 2/25/13 at 11:39am