Landslide Series: Exploiting the Interplay Between Trade Dress and Design Patent

Level: Advanced
Runtime: 92 minutes
Recorded Date: February 16, 2021
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  • Understand the differences between trade dress and design patent protections
  • Understand generally how to obtain trade dress and design patent protection
  • Understand the differences between functionality as a limit to protection in trade dress law versus design patent law
Runtime: 1 hour, 32 minutes
Recorded: February 16, 2021


Trade dress is a type of trademark that protects the source-identifying characteristics of a product, particularly the overall appearance, shape, and design of the product itself. By contrast, a design patent protects the new, ornamental design of a product. Successfully attaining both trade dress and design patent protections can be challenging. Both protection strategies have limits, particularly related to "functionality," which are determined differently depending on the form of intellectual property at issue.

This panel will explore the scope and intersection of trade dress and design patent protection and offer strategies for maximizing protection across the two regimes.

This program was recorded on February 16th, 2021.

Provided By

American Bar Association


Lisa Holubar

Partner and Head, Trademark & Advertising Litigation
Irwin IP

Lisa Holubar is the Head of Trademark and Advertising Litigation at Irwin IP. Lisa’s practice encompasses litigation and counseling matters concerning trademarks, trade dress, unfair competition, counterfeiting, and false advertising. Lisa has successfully represented clients in expedited trademark and unfair competition actions nationwide, both as plaintiff and defendant. Lisa has argued for and obtained injunctive relief and has examined witnesses in both federal court and disputed mediation proceedings. Lisa has considerable experience working with survey experts in trademark and false advertising disputes. Lisa also has represented clients engaged in administrative proceedings with U.S. Customs and Border Protection. Lisa has counseled clients on brand protection strategies and has presented on a number of issues regarding trademark and advertising law.

Ed Timberlake

Board Certified Specialist, Trademark Law
Timberlake Law

Ed Timberlake, a former Trademark Examining Attorney at the U.S. Patent & Trademark Office and currently a Board Certified Specialist in Trademark Law. Ed's practice focuses on trademarks & copyrights, primarily providing advice, preparing & filing applications, and maintaining registrations.

Sarah Burstein

Professor of Law
The University of Oklahoma College of Law

Professor Burstein is an internationally-recognized expert in design patents. Prior to joining the faculty at OU, she worked as an intellectual property litigation associate in the Chicago office of Kirkland & Ellis LLP and clerked for the Honorable Robert W. Pratt in the United States District Court for the Southern District of Iowa. Professor Burstein has a law degree from the University of Chicago and B.A. in Art & Design from Iowa State University.

Professor Burstein has participated in design law conferences at the University of Oxford, Notre Dame Law School, Stanford Law School, the Max Planck Institute for Intellectual Property and Competition Law, ETH Zürich, and Waseda University in Tokyo. Professor Burstein is a past chair of the AALS Section on Art Law and the ABA Design Committee and a member of the INTA Academic Committee.

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