Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863 (1994) p.125

SUBJECT

distinctiveness: secondary meaning

FACTS

P produced bags full of potpourri. Tried to trademark the shape of the bag.

ISSUE

Whether the bag has taken on secondary meaning such that the bag can be trademarked.

RATIONAL

Copyring was irrelevant in this case because D put their own trademark on the package which alleviated any problem of consumer confusion.

Courts are going to give copying a lot of weight IF the alleged copier does not also put their own mark on it. If you copy, that is a strong indication that you are trying to create confusion and take advantage of the other party's good will. In this case the D put their own trademark on the bag, so the fact that they copied the bag was not give mich weight. There was no likelihood of confusion since they put their own trademark on the bag.

NOTES

Trade dress is the total image of a product, the overall impression created, not the individual features.

Created on: Thursday, January 20, 2000 at 17:52:38 (PST)