Episode Transcript
[00:00:02] Speaker A: Ramping up your business. The time is near. You've given it hard. Now get it in Gear.
It's Passage to Profit with Richard and Elizabeth Gearhart.
[00:00:12] Speaker B: I'm Richard Gearhart, founder of Gearhart Law, a full service intellectual property law firm specializing in patents, trademarks and copyrights.
[00:00:20] Speaker C: And I'm Elizabeth Gearhart, founder of Gear Media Studios, podcast and content coach, Passage to Profit, co host and CMO at Gearhart Locke.
[00:00:28] Speaker D: That's a big list.
Welcome to Passage to Profit, everybody.
[00:00:32] Speaker B: The road to entrepreneurship, where we talk with entrepreneurs and celebrities about their business journeys.
[00:00:38] Speaker D: So now it is time for IP in the news.
[00:00:41] Speaker C: So have you ever gotten in a fight over a sandwich?
[00:00:47] Speaker D: Well, two giants have. Smucker's is suing Trader Joe's because they think Trader Joe's absconded with the design for their peanut butter and jelly sandwich.
[00:00:58] Speaker C: So I guess it's a round sandwich with crimped edges and a little bite out.
[00:01:02] Speaker D: Right. And I guess, you know, it's, it's big business. Smucker's is like selling almost a billion of these a year. And of course, Trader Joe's thought that maybe they could sneak in there with their own sandwich. But it's interesting because it's a trade dress cause of action, which means it's not trademark, it's not a design patent. You can actually protect the way your product looks in a court of law if you meet the right factors. And so that's the basis of this lawsuit.
[00:01:31] Speaker C: Do you have to file anything to get trade dress or you can, for.
[00:01:35] Speaker D: Example, get a trade dress type trademark. So, for example, Apple Computers has protected the look of all of their stores using trademarks and they're relying on trade dress protection.
And we actually had a trade dress case not too long ago. We had a client who was selling calculators to Walmart and a company from overseas copied the calculator. It was an unusual calculator because it was green, it was olive green with purple buttons. And the calculator that was the infringer was also exactly the same colors, very similar packaging.
So we were very successful against that. But they didn't have a patent, they didn't have a trademark. We were just able to make a trade dress claim.
[00:02:23] Speaker C: So you can make a trade dress claim without having filed anything just by virtue of having something that looks like it does?
[00:02:29] Speaker D: Yeah. The key here is though, you have to prove distinctiveness. You have to prove that consumers see the design as being distinctive and that you're known for that design. And that's actually a pretty high standard to meet, but if you can meet it, you have a case.
[00:02:44] Speaker C: So it's probably cheaper to file a trademark or design patent than to go to court and fight a case like this.
[00:02:50] Speaker D: Well, absolutely. At least if you have the design patent, for sure would have been a good move for them getting the trademark. You still have to prove that distinctiveness, but again, if you can do it, then it's worth doing okay. And if you have an idea or invention that you want to protect, contact us at Gearhart Law. We work with entrepreneurs worldwide to help them through the entire process of obtaining patents, trademarks and copyrights. You can visit learn more about patents.com or if you're interested in trademarks, learn more about trademarks.com and you can sign up for a free consultation. Or you can download your free Entrepreneur's Quick Guide to Patents or Trademarks and set up a consultation with the Gerhart Law attorney Passage to Profit is a nationally syndicated radio show appearing in 38.
[00:03:34] Speaker B: Markets across the U.S. thank you to the P2P team, our producer Noah Fleishman and our program coordinator Alicia Morrissey, our.
[00:03:42] Speaker D: Studio assistant Rishikep Busari, and our social.
[00:03:45] Speaker B: Media powerhouse Carolina Tabares. Look for our podcast tomorrow anywhere you get your podcasts. Our podcast is ranked in the top 3% globally. You can also find us on Facebook, Instagram X and on our YouTube channel. And remember, while the information on this program is believed to be correct, never take a legal step without checking with your legal professional first. Gerhardt Law is here for your patent, trademark and copyright needs. You can find us at gerhardtlaw. Com and contact us for a free consultation. We'll see you again next week on Passage to Profit.
