UPPOSE A COMPANY sells a unique product that is a national sensation, say a triangle-shaped car, and its competitor introduces a startlingly similar vehicle. Outraged, the company that originated the car design wants to file suit. Patent law is likely to be the first thought for recourse. (Copyright law generally will not apply unless the design is conceptually separable from the product itself.) However, if consumers look at the triangle-shaped car design and associate it with the original company, so that the design configuration itself acts as a brand, there also may be relief under the trademark laws.
Trademark law protection may have some advantages; unlike patents and copyrights, no registration is required before filing certain trademark claims, there is no time limit to trademark protection, and the federal Lanham Act permits claims for treble damages and attorneys’ fees even for unregistered marks or designs.[1]� Given the lack of formal barriers to pleading trademark product design claims and the potentially great rewards, these claims are often pleaded, either alone or as tag-along claims.
