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In a recent decision, Ezaki Glico v. Lotte International American Corporation, the Third Circuit rejected a manufacturer’s claims of trade dress infringement regarding Pocky, a chocolate covered cookie stick which Ezaki Glico invented in the 1970s.[1] The court concluded that Pocky’s overall shape and look cookie sticks partially coated in chocolate were functional and thus not protected from competitor imitation. The Third Circuit’s decision, which focused on the definition of “functionality” as it pertains to product design, carries important implications for marketing products in the food and beverage industries. Trade Dress Background Ezaki Glico facts, a few words on trade dress:

United statesHerman millerEzaki glico kabushiki kaishaTraffix devices incEzaki glicoTrademark officeDamental too ltdRose art indus incKwik lok corpBodum united states incSee schutte bagclosures incLotte international american corporationPatterson belknap webb tylerQualitex coPatterson belknap webbInternational american corporation