Western PA Company and Captain Morgan Square Off on Trade Dress

For many years, Capri Sun had the pouched-beverage market cornered.  As children, we were attracted to shiny, colorful packaging and the novelty of drinking from malleable pouch (despite the repeated frustrating experiences trying to insert the drink’s plastic straw without punching a hole in the side of the pouch).

Fast forward to today.  Not all beverages served in pouches are sugary kids’ drinks– adult beverage companies have jumped on the idea.  Which brings us to a recent IP dispute of local interest.

As the Pittsburgh Tribune-Review reports, American Beverage Corp. (based in Verona, PA, just outside of Pittsburgh) filed a federal trademark lawsuit recently, claiming Diageo, which owns Captain Morgan, copied its single-serve frozen cocktails design, constituting patent and trade dress infringement.  The Complaint is available here.

I’m not a patent attorney, so I won’t go into the question of whether the Defendants’ design infringes on Plaintiff’s patent.  But this case does present an interesting question about trade dress.

Here’s a look at the products, side-by-side.

Generally speaking, trade dress will not be protected if it’s “functional.”  If trade dress didn’t have this limitation, competition would be inhibited.  The first person to think of serving beer in a bottle would “own” that concept, and so on and so on.

But trade dress protection is available to reward producers for creating innovative product designs (and to protect consumers from confusion when they rely on the distinctive appearance of a product to make a purchasing decision).  Most people can recognize a bottle of Coca-Cola by its shape, even if the label were removed.  So the question is, how unique, how distinctive, is the American Beverage pouch? Is it like the Coca-Cola bottle, or is it just another pouch?

New-ish Trademark Blog: Trademark Sentinel

San Jose law firm Owens Tarabichi LLP has rolled out a (relatively) new blog: Trademark Sentinel, where they do a nice job of covering some of basics in a client-friendly manner.

Here’s a post that breaks down the key distinctions between patent and trademark protection.  There’s something there for lawyers, too.  Here’s a recent post on the applicability of a registrant’s scope of expansion in ex parte proceedings.

Welcome to the party (such as it is)!

USPTO Roundtable Discusses “Three-Track” Approach to Patent Applications

The USPTO held a roundtable discussion this week in Washington to discuss a proposed “Three-Track” approach to patent applications.  Currently, the USPTO takes all of its applications and filters it through a “one-size-fits-all” process.   The new measure is meant to allow for more control over the speed at which applications are processed, increase efficiency and decrease waiting times on pending patent applications.  Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos stated that “by allowing applicants greater control over the timing of examination, the USPTO will be able to deploy its resources to better meet the needs of innovators.”

The new approach creates three routes of application.  The first track allows for prioritized application with additional fees.  The second track allows for the traditional approach while the third track allows a 30 month delay in docketing for examination  for non-continuing applications.  In addition to the three tracks, applications from foreign patent offices would be changed as well.

The Department of Commerce is asking for written comments to be submitted on the new plan by August 20, 2010.