Sometimes I dream of opening a bakery as a side project to my law career. Nothing fancy, just a small cozy bakery, tucked away somewhere, with overstuffed chairs to curl up and read by the fire and a small seating area, and the smell of freshly baked goodies in the air: the perfect setting for a quiet, intimate conversation.
To my knowledge, this place does not exist. But even if it did, would I be infringing the owner’s rights if I opened up a similar shop? If recipes are not protectable, are the places that utilize them?
The Supreme Court seemed to think so.
Trade dress, an aspect of trademark law, qualifies for protection based on the “overall feel” of a product – examining colors, textures, images, displays etc. But where do you draw the line? In Two Pesos v. Taco Cabana, the district court held that one’s use of Mexican decorations and feel infringed the trade dress of the other, a decision affirmed by the Supreme Court. The issue on appeal was whether inherently distinctive trade dress required a secondary meaning. What was not challenged, but what ought to have been, was whether the Mexican décor utilized could be considered inherently distinctive.
A key feature of trademark law is that the mark cannot be too general, nor can it describe the thing itself. A Mexican restaurant suing for trade dress protection on a Mexican theme seems like it should be too generic to receive protection. The décor is representative of a general place which defines the cuisine. There would be no difference then for someone applying for a trademark on a brand name utilizing the word “cookie” to describe his cookie company.
But a restaurant with a distinct ambiance, that portrays the atmosphere the owner wants without reflecting the commonplace cuisine served should be protectable. If I utilize my décor to signify and represent what my shop is all about, then of course my restaurant should qualify for trade dress protection.