Did a design philosophy penned 30 years ago in an internal policy directive sink Apple's chances to assert certain package and product designs as protectable trademarks?

Hot off the presses from today is the opinion from the U.S Court of Appeals for the Federal Circuit, a court that hears a lot of appeals from lower courts where the case involves patents, is the latest opinion in the long-running battle between Apple and Samsung over Samsung’s copying of Apple’s iPhone design. At least one portion of Apple’s asserted intellectual property from its smartphones was deemed unprotectable because the I.P. in question is functional. It seems the apple has fallen from the tree straight onto what is sure to be a frustrated Tim Cook. A little synopsis of the case may help get to the core of the matter a little more quickly: In April 2011, Apple sued Samsung for design patent and trademark infringement, alleging that Samsung’s Android phones and tablets copied several elements of Apple’s phone design and user interface, including the distinctive grid-structure design from Apple’s graphical user interface (or GUI, for the acronym buffs). In August 2012, a jury found that numerous Samsung smartphones infringed Apple’s patents and diluted Apple’s trademark designs for its GUIs, awarding the company $1 billion in damages. This damage award was modified downward a few times to $290 million. In the lower court case, the jury found that Apple’s GUI was a valid trademark, protectable as trade dress. Samsung appealed both that finding and the $290 million damages award last year.

Anybody who has been reading this blog for a while knows about some of the issues that come along with trying to protect trade dress but in case you missed it, here is a little primer on how trade dress (or product packaging, if looking for a less-legal word) is protected as a trademark. Just a quick summary for those who are reading this blog on a few minutes’ allowance: trade dress/product packaging, as a distinctive type of design that is capable of pointing to the company that produced it, is protected as a trademark. This protection exists to promote competition; therefore, it will not be extended to mere designs that are required by a particular product configuration or other functional considerations because to limit other companies from being able to produce an alternative design would just be anti-competitive. Trademark protection is not generally dolled out like candy because the potential term of protection is infinite, making it possible for a company to get a monopoly on something that may not be specific to the company.

Sometimes when I go to the store I pick up random things and read the labels. When I was younger, it used to be a form of entertainment before smart phones were created because it helped me fill the time while I stumbled through the store, parents in tow, struggling to find anything to keep me from lapsing into a state of crushing boredom. Even today, despite all the conveniences (and escapes) brought on my modern technology, I still like to pick up different items and read the labels, even if I have absolutely no interest in purchasing the product. So this past weekend, a trip to Target with my significant other presented no opportunities for variation from this trend.

Walking down the cosmetics aisle, I came upon this label while looking for some makeup stuff (concealer, whatever) for my significant other. Take a look at what the label says. Now read it again. Am I the only one confused by the statement “Package design trademark and all copy © e.l.f. Cosmetics”? Maybe it’s the way I read, but it seems like the maker of this cosmetic is trying to say that the text and stuff that describes the cosmetics (including pictures) are copyrighted and the package design is trademarked. Or is it that the package design, trademarks, and all text are copyrights? Still a third way to look at it could be that the ® symbol in front of this whole clause is referred to the package design and all other trademarks. But there is still that phrase “and all copy” to haggle with.