In their article “Visual Over Verbal: Hierarchy of Trade Dress Application Elements,” published in the Intellectual Property & Technology Law Journal, Knobbe Martens lawyers Priyanka Menon and Greg Phillips discuss the importance of visual representations in trade dress applications.
Menon and Phillips argue that visual representations, specifically the drawing, exercise priority over verbal descriptions in determining the scope of a claimed mark and provide in-depth analysis of multiple Trademark Trial and Appeal Board decisions that illustrate this hierarchy of elements. They address how this trend contrasts with USPTO examiners’ training directive to consider all aspects of a trade dress application, creating “an inherent ambiguity in the doctrinal framework governing trade dress prosecution.”
Based on their analysis, the authors offer a procedural roadmap for practitioners navigating the trade dress application process, emphasizing the importance of visual clarity and consistency across application components.
Read the full article here.
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