Should exclusivity of use be required for trade dress? The Fashion Law Institute, Tiffany & Co., and Christian Louboutin address this issue in their Federal Circuit amici curiae brief in Converse v. ITC. From WWD:
The brief said the ITC “inaccurately” suggested in its underlying decision that without a complete exclusivity of use, secondary meaning cannot be established.
“This view overemphasizes the weight to be given to the absence of substantial exclusivity when assessing secondary meaning,” the parties argued in their brief. “Contrary to the commission’s approach, secondary meaning can and does exist in the absence of exclusivity of use. Indeed, exclusivity of use is not a prerequisite to obtaining and holding a valid trademark, as it might be in other areas of intellectual property law.”
Instead, the amici said exclusivity should be characterized as “just one of many indirect tools that can help answer the secondary meaning question — whether the buying public associates a mark with a single source.”