One of the benefits of patent litigation is the ability to obtain fairly sizable damages awards under either a "reasonable royalty" or "lost profits" theory. However, patent litigation is complicated and costly, and early injunctions are difficult to obtain. Trademark litigation typically provides a more straightforward path to an injunction, but damages awards are much smaller. Trade dress litigation provides an avenue that lies somewhere between patent and trademark litigation, offering some of the benefits of each, such as a simplified trial schedule (with no Markman hearing), significant damages awards, the ability to obtain an injunction, and a leaner trial budget.

The years since 2010 have seen a notable increase in trade dress litigation. Recent high-profile cases and fairly large damages awards make trade dress litigation a viable alternative.

In 2011, a Texas jury awarded a plaintiff over $5.8 million in damages for infringement of trade dress in rooftop support blocks for power lines (Clearline Technologies v. Cooper B-Line). In 2012, a California jury awarded a trade dress plaintiff over $8 million in damages for infringement of the bottle design for hair care products (Mixed Chicks v. Sally Beauty Supply). Last October, a California jury granted Herman Miller $8.4 million in damages for infringement and dilution of its Eames office chair trade dress by a competitor (Blumenthal Distributing Inc. dba Office Star v. Herman Miller Inc.). Recently, a Pennsylvania jury gave over $5 million in damages to a plaintiff who claimed trade dress in the container and packaging for a fig spread (Dalmatia Import Group, Inc. v. FoodMatch, Inc.). While these damages awards might seem like small potatoes compared to some patent litigation awards, they are sizable enough to make a trade dress trial worth the effort.

The next big award may be in a case involving competing spirits companies, Globefill, Inc. v. Elements Spirits, Inc. Plaintiff Globefill was started by movie star Dan Aykroyd to produce and sell Crystal Head, a high-quality vodka packaged in clear bottles shaped like a skull. The defendant, Elements Spirits, produces Kah brand tequila and sells it in "sugar skull" bottles.

Globefill filed its trade dress case against Elements Spirits in 2010, and lost a first jury trial in November 2013. After an appeal to the Ninth Circuit, Globefill was granted a new trial. On March 29, 2017, a California jury returned a verdict for Globefill, finding Elements Spirits had willfully infringed the skull trade dress. On April 21, Globefill filed a motion for disgorgement of Element Spirits' profits (estimated at $13.4 million), and requested payment of its attorneys' fees (estimated at $4.3 million).

Based on the conduct described in the case, it is likely the court will award Globefill the full amount of Elements Spirits' profits, and possibly even its claimed attorneys' fees. One point that particularly hurt Elements Spirits was testimony from a witness who recounted a request by the company owner to make a plaster cast of the Crystal Head bottle as the starting point for the tequila bottle design.

While such developments on the damages front are positive for trade dress plaintiffs, there are some recent negatives. One concerns the doctrine of aesthetic functionality, which gained some notoriety with the Christian Louboutin v. YSL "red sole" case in 2012. This doctrine holds that a color or shape may be functional even if it has no practical function, so long as competitors need to use it to compete. YSL's argument in Louboutin was just that: it needed the contrasting red sole on its shoes to compete. Ultimately, the court found otherwise.

At the time Louboutin was decided, the doctrine was all but dead, but two recent decisions suggest it may be poised for a comeback. In Millennium Labs v. Ameritox (2016), the Ninth Circuit endorsed the doctrine for the first time in over 10 years in a case involving the format of medical reports. In April this year, a California court seized upon the Ninth Circuit's endorsement and applied the doctrine in a case relating to spice containers, but ultimately found the trade dress not aesthetically functional.

In sum, trade dress litigation is an evolving area of law that can offer significant help to those seeking protection. Brands concerned about incursions on the look of their products should consider adding it to their strategy.