Whether trade dress is 'functional' if it is 'essential to the use or purpose of the article' or 'affects the cost or quality of the article,' as this Court and nine circuit courts have held, or if it is merely 'useful' and 'nothing more,' as the Third Circuit held below

QUESTIONS PRESENTED The Lanham Act protects trade dress from unlawful copying. Trade dress includes a product’s design, such as the red wax seal on a bottle of Maker’s Mark, the shape of the Chanel No. 5 perfume bottle, and the configuration of the Pepperidge Farm Milano cookie. To qualify for trade dress protection, a product’s design cannot be “functional,” among other requirements. At issue in this case is the test for “functionality” in trade dress law and the role of alternative product designs in creating a dispute of fact that prevents summary judgment. This petition presents two questions: 1. Whether trade dress is “functional” if it is “essential to the use or purpose of the article” or “affects the cost or quality of the article,” as this Court and nine circuit courts have held, or if it is merely “useful” and “nothing more,” as the Third Circuit held below. 2. Whether the presence of alternative designs serving the same use or purpose creates a question of fact with respect to functionality, where the product’s design does not affect cost or quality and is not claimed in a utility patent. (i)