Whether, and to what extent, a competitor's intentional copying alone—without any intent to confuse consumers or pass off its products as the plaintiff's—is probative of whether the plaintiff's trade dress has secondary meaning

QUESTION PRESENTED This case presents a clear, widespread, and entrenched conflict regarding an important statutory question under the Lanham Act, 15 U.S.C. 1051 et seq. In order for trade dress to be protected under the Act, a party must show its dress has acquired “secondary meaning”—“in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself.” Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851 n.11 (1982). The courts of appeals are now sharply divided over the role of intentional copying in assessing secondary meaning: what, if any, probative value is associated with evidence that a competitor intentionally copied a plaintiffs product design? On one side of the split, three circuits hold that “(elopying is only evidence of secondary meaning if the defendant’s intent in copying is to confuse consumers and pass off his product as the plaintiffs.” According to these circuits, there are legitimate, pro-competitive reasons to copy a product that have nothing to do with confusing consumers or passing off a good. On another side of the split, the Ninth Circuit holds the opposite: in its view, because the only “logical” reason to copy is to abuse existing secondary meaning, mere copying alone “strongly supports” an inference of secondary meaning—without any “intentto-confuse” requirement. Other circuits still have fractured in multiple directions, and this critical issue arises constantly in trade-dress litigation. The question presented is: Whether, and to what extent, a competitor’s intentional copying alone—without any intent to confuse consumers or pass off its products as that plaintiffs trade dress has secondary meaning. (I)