Justice John Paul Stevens’ Inaugural Lecture in Trademark Law honoring Beverly Pattishall truly is a memorable read. Justice Stevens has provided a clear rationale for the Supreme Court’s most recent line of trade dress cases that most thought impossible. In fact, most have not even thought that there was a rationale, let alone a clear one, to a line of cases where the Court seems to be straining to balance the competing interests in American trademark jurisprudence. Rather than the arbitrary conclusion reached by the Supreme Court in distinguishing product configuration from product packaging, most commentators have recommended a more flexible approach. The common thread in this scholarship is that trade dress protection should be afforded manufactures but on a consistent basis without favoring one type of trade dress over another. A few commentators have argued that no trade dress should be subject to protection without secondary meaning. These commentators suggest that courts have rushed into the current scheme of protection without thoroughly considering all of the likely effects on the marketplace as well as on creativity. The real struggle that the Court seems to be facing is the intersection between patent law and policy and trade dress law and policy. Fear of granting patent-like rights to trade dress claimants in perpetuity may explain the Supreme Court’s trade dress jurisprudence.
Kenneth L. Port, On Red-Haired Waitresses, Shakespeare, and Product Configuration: A Response to Justice Stevens, 1 J. Marshall Rev. Intell. Prop. L. 218 (2002)