Trade dress watch — the value of trade dress litigation is on the rise

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By Heather Angelina Dunn and Shannon Mo

The value of trade dress litigation is on the rise. While in the past the primary value of trade dress litigation rested in the ability of the plaintiff to enjoin competition (except possibly in cases of counterfeit goods), recent cases suggest otherwise.

Juries in California and Texas recently made awards of $8.1m (£5.2m) and $5.86m (£3.75m) in two cases involving trade dress infringement. The issue in Mixed Chicks v Sally Beauty Supply was a hair care product line targeting multi-ethnic customers with naturally curly hair under the trademark Mixed Chicks. The line was packaged in cylindrical, translucent, plastic bottles with clear pumps and cylindrical, translucent, plastic jars showing the colour of the product within. In 2009, Sally Beauty Supply, the world‟s largest retailer of professional beauty supplies, offered Mixed Chicks the opportunity to sell its line in Sally Beauty stores, but Mixed Chicks declined and continued to sell its products through its website and salons.

In 2011, Sally Beauty introduced its own product line for individuals with naturally curly hair: Mixed Silk. Mixed Chicks claimed the Sally Beauty line infringed its trademark and trade dress rights, contending that the shapes of the Mixed Silk bottles and jars, along with such similarities as fonts, colours and the translucent pumps, were likely to cause confusion among consumers…

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