IPKat - IP news and fun for everyone has just published a report (which is in line with my earlier post on tradedress protection in Europe), the main lines of which can be summarized as follows:

The fourth and final session of the first day of the INTA Advanced Symposium, "Undressing trade dress", sought to bring everyone up to speed on the law and business developments in US and EU trade dress law in the 15 years or so since the US Supreme Court decision in Two Pesos v Taco Cabana.

Moderator D. Peter Harvey (Harvey Siskind LLP, US) led speakers Curt Krechevsky (Cantor Colborn, US) and a late substitute for William D. Raman (Wong Cabello, US), who had been taken ill, Verena von Bomhard (Lovells, Spain) and Jaime Schwartz (YUM! Restaurants International) through a tour of the issues -- particularly the relation between 'traditional' trade mark law, unfair competition/passing off doctrine at state level and the trade dress provisions under s.43(a) of the Lanham Act.

Verena von Bomhard then explained that, in Europe, the term "trade dress" had no legal significance. EU protection is essentially registration-based and the EU IP professional would analyse that which it is sought to protect and then break it into its component parts - a sort of 'protection cascade' of registered trade mark and design rights, followed by unregistered rights. Three-dimensional marks have become increasingly difficult to register without additional distinctive subject matter.

Jaime Schwartz closed the session with a review of post-Two Pesos as it specifically affected the trade dress of store get-ups,restaurant uniforms and similar items. It is clear that any "generic look" remains unprotectable and that the courts are unwilling to draw a negative inference even from the fact that the alleged infringer can be shown to have committed an act of intentional copying.