Ack! It's not Coca-Cola! (Is that so bad?)

My coworker, Carolyn, picked up a red can with white lettering, which she assumed was Coke. As she's drinking it, she looks at the can and wonders what Berkley & Jensen is (at this point she still hasn't realized it's not Coca Cola). Even though the can was a lighter shade of red, and the white lettering says 'Cola Clasic' (classic is slightly smaller than Cola.) she said they fooled her-she thought it was real Coke she was drinking. The lettering isn't script, but Cola Classic is also in a lighter pink, and sprinkled over the can-sort of like somebody just dumped it on...(sorry I wish I could describe that better). I also wish I could find a picture of the can online (of course, if you're familiar with BJs wholesale foods, you might already know what it looks like.)

-Ella Shurr (Cleveland, OH)

Ella, you have stumbled upon what is called Trade Dress. It's not trademark law, but certainly a subset of it. Just like trademarks, the Trademark Act of 1946 (also called the Lanham Act) covers trade dress. The case that every law student who studies trademark law reads is Two Pesos, Inc. v. Taco Cabana, Inc. (91-971), 505 U.S. 763 (1992) (the link is to a summary of the case). As the previous link states "§ 43(a) of the Trademark Act of 1946[ ] provides that "[a]ny person who . . . use[s] in connection with any goods or services . . . any false description or representation . . . shall be liable to . . . any person . . . damaged by [such] use." The title of this section of the Act is called "False designations of origin and false descriptions forbidden."

What does this mean? It means that two different goods from two different sources cannot look alike, as if they come from the same source. (And here, "source" means "producer.") In the Two Pesos case, one Mexican restaurant was sued by another Mexican restaurant. Why? According to the published opinion, Taco Cabana opened a restaurant that had "a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme." Two Pesos then opened a similar-looking Mexican restaurant.

(I don't know about you, but this description seems to fit many average-quality Mexican restuarants I've been in.)

To make a long story short (too late), the case restates that trade dress is important to mark goods and that you can sue for trade dress infringement. Of course, Two Pesos lost its suit, infringing on Taco Cabana's design.

Here is another example of trade dress: Adidas likes to put three stripes on all of the shirts and shorts it makes. So you know it's from Adidas, even if you can't see the mark, because the design is similar. (Many thanks to Paul Lukas and his Uni Watch Blog for the first couple links.)

There's your crash course in trade dress. I wish I could find a pic of BJ's Warehouse cola, just to compare it. But be on the lookout - it's not just the name, but it's also the packaging and design of the product that matters in trademark and trade dress.