That s the way the cookie crumbles , a panel of judges from the US Court of Appeals for the Third Circuit again concluded in rejecting trade dress protection for the well-known Pocky cookie design. However, in a revised decision following a rehearing request, the panel clarified its initial analysis on trade dress functionality, providing a fuller explanation of its reasoning which may soothe trade dress advocates.
Facts
More than 50 years ago, Japanese confectionery company Ezaki Glico Kabushiki Kaisha released Pocky – thin, elongated biscuits partially covered with chocolate (Figure 1).
Figure 1
Pocky eventually entered the US market. About five years later, Lotte Confectionery began selling Pocky lookalike biscuit sticks called Pepero (Figure 2):