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Business Issues : Trade Dress Under The Lanham Act

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As per your request, the following captures my suggestions aimed at addressing the outlined issues (1) Trade Dress under the Lanham Act, (2) Copyright protection of the design (3) Design Patent under the Patent Act. As our client has described it, the cell phone holder he is seeking to protect is made up of steel wire and has structure similar to that of a paper clip. In addition, it has two bright orange soft flexible “hands” to hold the sides of the phone, covering what would otherwise be hard and potentially phone-scratching ends of tubing, as well as two bright orange soft flexible “feet” that provide stability and resistance to sliding or tipping. Under 15 U.S. Code § 1127, a trademark protection is granted on words, symbols, or…show more content…
However, such features will not be protected if they confer any sort of functional or competitive advantage. Rules out The second consideration is the option of obtaining a copyright over the design of the cell phone holder, which requires evaluating and assessing various factors. Under 17 U.S. Code § 102, copyright protection subsists in original works of authorship fixed in any tangible medium of expression. The works of authorship include literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. As stated above, the current Copyright Act also protects “pictorial, graphic, and sculptural works,” 17 U.S.C. § 102(a)(5). The Act defines this trio of work types to include “applied art,” and emphasizes that these “works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.” Intellectual Property law: Cases and materials, Loren and Miller. A “useful article” is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”17 U.S.C. § 101. Useful articles, can have designs that are capable of copyright protection—namely, where they “incorporate pictorial, graphic, or sculptural
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