Rounding the Corner on Trade Dress

Rounding the Corner on Trade Dress

By Katherine J. Strandburg+

+ Professor of Law, New York University School of Law.

Excerpt from Rounding the Corner on Trade Dress, 29 Yale J. on Reg. 387 (Summer, 2012)


I am extremely pleased to have this opportunity to contribute a reflection on Judge Richard Cudahy's intellectual property jurisprudence to this tribute issue. There is much that could be said about the way that Judge Cudahy's corpus of intellectual property opinions reflects the qualities I observed in him during my clerkship and continue to admire, including his keen intellect, commitment to justice and fairness, and deep insight into the way law works on the ground. In this brief space, rather than attempt an overview, I will focus on his important 1993 dissent in the trademark case of Kohler Co. v. Moen Inc. 1 Judge Cudahy's dissents are a very important part of his jurisprudence, 2 providing perhaps the clearest windows into his views. 3 The Kohler dissent was prescient, foreshadowing a turn by the Supreme Court in this century away from an overly simplistic view of intellectual property as the engine of innovation, which often prevailed in the 1990s, to a renewed understanding of the interplay between intellectual property and competition as innovation drivers. 4

In Kohler, 5 a Seventh Circuit majority concluded that trade dress coverage for unpatented product designs presented no conflict with the patent system. Judge Cudahy penned a well-known 6 dissent, 7 later described by commentators as "spirited," 8 "elegant[]," 9 and "forceful[]." 10 He argued that product design could not be the subject of trademark protection because of the potential for such protection to interfere with patent law's careful balance between exclusive rights ...

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