Restricting Trade Dress Protection: The Case of Video Games

Abstract

Although courts have generally prevented the overexpansion of trade dress protection by applying well-established tests and standards, there are exceptions. The reason of this exceptions, this article argues, is that courts are implicitly importing principles from other areas of intellectual property (namely, copyright and patent laws) aimed to protect incentives to innovate rather than source identification, hence broadening trade dress protection far beyond its original rationale. Overreaching the scope of trade dress protection has negative effects, for it result in higher costs for competitors, threatens to lessen innovation, all of which harm consumers by diminishing the availability of different and cheaper competitive alternatives that otherwise could be present.

The video game industry provides a good example of the above mentioned. In a billionaire industry (one of the largest entertainment industries in the United States) where sophisticated companies with major investments face substantial competition from other big companies as well as from microbusinesses (even from college students), manufacturers frequently tie their copyright claims with allegations of trade dress violation. And the thing is that, although exceptionally, overly broad trade dress claims have been admitted on grounds more akin to copyrights or patents than trade dress, resulting in the elimination of a new competitor who was providing a cheaper alternative. To conclude, the existence of well-established tests and standards suggests that there is no need for dramatic changes on how courts assess trade dress claims. However, a warning has to be made when these claims are brought together with copyrights or patents claims. In such cases tests should be narrowly applied and some restrictive criteria should be followed, as proposed in this article.

Keywords: Trade dress, trademarks, video games, competition, antitrust law, tetris