This is a tale of more than just desserts. Decades ago, Ezaki Glico invented Pocky, a chocolate-covered cookie stick. Pocky was very popular. And its success drew imitators, including Lotte’s Pepero. Ezaki Glico now sues Lotte for trade-dress infringement.
The District Court granted Lotte summary judgment, finding that because Pocky’s design is functional, Ezaki Glico has no trade-dress protection. We agree. Trade dress is limited to features that identify a product’s source. It does not safeguard features that are functional—that is, useful. Patent law protects useful inventions, but trademark law does not. We will thus affirm.
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