UNDRESSED: Swatch AG sues Target for Trade Dress Infringement



Swatch's watch is on the left. Target's watch is on the left. The designs are, apparently, very similar if not identical. But is there 'secondary meaning'?

Swatch’s watch is on the left. Target’s watch is on the left. The designs are, apparently, very similar if not identical. But is there secondary meaning?

Swatch AG filed a lawsuit against Target Corp. on March 7, 2014 in SDNY, alleging that Target engaged in “trade dress infringement, unfair competition, false advertising and false designation of origin” by copying Swatch’s watch designs.

Here’s why this matters: product designers are increasingly using trade dress claims as some kind of loose proxy protection in an effort to monopolize the use of “their” designs. To the extent that they are successful in this effort, they will stifle competition and, to their benefit, procure a competitive advantage through monopolized designs. This has the potential to spawn huge amounts of litigation as product designers seek products that are suspiciously similar to their own. The result is, it is feared, that the most well-funded legal teams will be able to crush smaller designers. Think patent trolls for the design industry.

But what is trade dress?

Trade dress is a form of protectable form of intellectual property under trademark law. Trade dress is a product’s design or packaging that the public associates with a single source, such that a similar design, even absent the company’s logo or name, is likely to confuse the public about who made or sponsored the product.  Trade dress protection requires a product designer to prove this “secondary meaning” (the U.S. Supreme Court case, Wal-Mart Stores, Inc. v. Samara Bros., Inc. definitively established this requirement).

Swatch AG is alleging that Target is knocking off its Zebra Watch and Multi-Colored Watch and relying on the established reputation of Swatch to sell Target’s inferior knock-offs. Swatch has a federally-registered trademark for the SWATCH name, but the complaint relies on common law trade dress protection.

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