The International Trade Commission (ITC) must grapple once again with the issue of secondary meaning, in the remand of a case involving sneakers.
Converse brought suit against 31 shoe manufacturers at the ITC in 2016, alleging the Chuck Taylor All Star Design. Converse sough general exclusion orders based on its common law rights since 1932, and its 2013 trade dress registration, which protected “the design of the two stripes on the midsole of the show, the design of the toe cap, the design of the multi-layered toe bumper featuring diamonds and line patters, and relative position of these elements to each other.”
James Donoian, partner at McCarter & English, says that regardless of the ITC’s interpretation of the Federal Circuit’s decision on remand, the opinion “provides useful guidelines for litigation strategy,” particularly around survey evidence and third party use. “It’s going to be interesting to see how the parties recalibrate their arguments,” he says, “and whether the ITC is going to change its mind.”
Click to read full article: “What to Look for in ITC’s Second Go at Secondary Meaning”. (Subscription required)