Trademark & Trade Dress — 2025

Trademark and trade dress law had a busy year in 2025. The Supreme Court weighed in on disgorgement remedies, the Federal Circuit addressed color mark genericness for the first time, and the courts began confronting a wave of dupe-culture packaging disputes. Here is what mattered.

Dewberry Group v. Dewberry Engineers (S. Ct., Feb. 2025)

The Supreme Court unanimously held that a disgorgement award under the Lanham Act must be limited to the profits of the named defendant — not the profits of affiliated corporate entities that were not parties to the suit. The district court had lumped together Dewberry Group's profits with those of its separately incorporated property-owning affiliates on 'economic reality' grounds, resulting in a $43 million award. The Supreme Court reversed, holding that 'defendant's profits' means the profits of the party against whom relief is sought, full stop.

The decision has immediate practical consequences for both plaintiffs and defendants in trademark cases. Plaintiffs pursuing disgorgement must now identify and name as defendants all entities that earned profits attributable to the infringing conduct — including affiliates and subsidiaries — before judgment. Defendants, meanwhile, can use corporate separateness as a shield against profit-lumping, provided the structure is legitimate and not a sham. Willfulness remains relevant to whether disgorgement is awarded at all, but it does not override the corporate separateness principle.

In re PT Medisafe Technologies (Fed. Cir., April 2025)

The Federal Circuit formally adopted a two-step test for determining whether a color trademark is generic: first, identify the genus of goods at issue; second, ask whether the relevant public understands the color primarily as a category or type of trade dress for that genus rather than as a source identifier. The case involved an application to register dark green as a trademark for chloroprene medical examination gloves — a color the court found was so common in that industry that it could not identify a single source. The Supreme Court subsequently denied certiorari, leaving the Federal Circuit's framework intact.

The decision matters beyond medical gloves. It is the first time the Federal Circuit has formally articulated a genericness standard for color marks, filling a gap that had generated inconsistent results across circuits. For brand owners seeking to register or defend color marks, the key variables are how broadly or narrowly the relevant 'genus' is defined — a question the applicant lost here by proposing an overly narrow definition — and whether competitors' widespread use of the same color undercuts source-identification. The opinion strengthens the hand of competitors challenging iconic color marks.

Cardinal Motors v. H&H Sports Protection (2d Cir., Feb. 2025)

The Second Circuit clarified that two distinct requirements apply to product-design trade dress at the pleading stage: the plaintiff must both (1) articulate the specific protectable elements of the asserted trade dress, and (2) plausibly allege that those elements are distinctive — that is, that they have acquired secondary meaning. The district court had dismissed the case by conflating the two inquiries.

The Second Circuit reversed, explaining that articulation and distinctiveness are separate requirements. A complaint can satisfy the articulation requirement by clearly describing the claimed trade dress while plausibly alleging that the design has acquired distinctiveness through use in the marketplace. It also reinforces the importance of consistency: how a plaintiff articulates its trade dress in litigation should align with how it has described that trade dress in trademark applications, demand letters, and other enforcement contexts, since inconsistency can be used to undermine both the articulation and the secondary meaning arguments.

Bullshine Distillery v. Sazerac Brands (Fed. Cir., 2025)

In a case of first impression, the Federal Circuit held that whether a trademark is generic should be assessed at the time of registration — not at the time of litigation. The case involved FIREBALL-adjacent cinnamon whiskey branding, with the challenger arguing the mark had become generic over time. The Federal Circuit rejected that framing, holding that the relevant inquiry looks back to when the mark was registered, not forward to present-day consumer perception.

The ruling provides meaningful protection for trademark owners defending against genericness challenges and cancellation proceedings. It forecloses the argument that a mark that was distinctive at registration has since been diluted into generic status — at least as a direct challenge to validity. Brand owners should note, however, that the decision does not eliminate the risk of genericide through loss of distinctiveness; it simply sets the temporal baseline for the analysis. Consistent policing and proper usage remain essential to avoid the kind of brand erosion that could eventually support a challenge even under this standard.

Yuga Labs v. Ripps (9th Cir., July 2025)

The Ninth Circuit held that NFTs constitute 'goods' under the Lanham Act and are therefore subject to trademark protection. The defendant had argued that NFTs' intangible nature placed them outside the statute's scope, relying on the Supreme Court's Dastar decision. The Ninth Circuit rejected that argument, finding that Dastar did not establish a bright-line rule excluding intangible goods and that NFTs — which are traded, purchased, and have commercial value in online marketplaces — are treated the same as conventional tangible goods for trademark purposes.

The decision removes a threshold ambiguity that had complicated digital brand enforcement. Brand owners can now pursue trademark infringement claims based on NFTs using the same framework applicable to physical goods, including likelihood of confusion, dilution, and counterfeiting theories. The practical significance extends beyond NFTs to the broader question of how courts will treat other digital assets. For luxury brands, fashion houses, and consumer brands with digital extensions of their physical product lines, the ruling provides a clear enforcement pathway.

'Dupe Culture' Arrives in Federal Court

Two high-profile trade dress suits filed in 2025 signal that brand owners are drawing a harder line against 'dupe' products — store-brand and private-label goods that closely mimic the packaging, appearance, and design of branded items. J.M. Smucker sued Trader Joe's in the Northern District of Ohio over crustless PB&J sandwiches it claims infringe Uncrustables' trademark and trade dress; Mondelez sued Aldi in the Northern District of Illinois over alleged trade dress copying of Oreos, Chips Ahoy, and Nutter Butter. Both cases are in early stages and are expected to go deep into 2026.

The cases reflect a broader cultural and commercial shift: social media has accelerated dupe culture, with influencers actively promoting cheaper alternatives to branded products. The legal question — when does close packaging similarity cross from inspiration into infringement — is not new, but the economic pressure on brands is intensifying. Key issues will include whether the relevant trade dress is functional, whether it has acquired secondary meaning, and whether consumers are actually confused or merely aware they are buying a dupe. The outcomes will have wide implications for private-label strategy across consumer goods.