The Federal Circuit decision in Egyptian Goddess Inc. v. Swisa Inc . focused new attention on the venerable “ordinary observer” test for design patent infringement. This renewed focus is a reminder of the similar “likelihood of confusion” test that is the standard in trade dress infringement analysis. Despite doctrinal differences, these two tests for infringement are, at least superficially, difficult to differentiate. This article will briefly review the origin and goals of these two standards, the recent changes in the design patent standard, and discuss the overlap in their jurisprudence.
Trade Dress Protection
Trademark law exists to prevent consumer confusion as to the source of goods or services. Unlike a patent, which protects the patentee’s rights regardless of use, trademarks require use and are designed to protect society in general and the trademark holder only indirectly. Although modern trademark protection is generally sought under Section 43(a) of the Lanham Act, trademark law is largely grounded in state unfair competition laws and regulations.
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