GM denied injunctive relief in Hummer trade dress case

A product’s trade dress is its overall image and appearance, and may include features such as size, shape, color or color combinations, texture, graphics, and even particular sales techniques.  Trade dress infringement requires three elements:  1) an inherently distinctive trade dress or one that has acquired distinctivness through secondary meaning; 2) likelihood of confusion among consumers as to the source or origin of the competing products; and 3) the trade dress is non-functional.

GM claims that its Hummer design includes an inherently distinctive trade dress that was infringed by a body kit sold by Urban Gorilla.  In denying GM’s motion for a preliminary injunction, the 10th Circuit affirmed that the likelihood of post-sale confusion, and not just confusion at the point of sale, is relevant to the trade dress infringement inquiry.  In support of its holding, the Court reasoned that GM failed to establish its likelihood of success on the merits.