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Trade dress is not what happens on Friday night at the sorority house. The term refers to a form of intellectual property, sort of a cross between a trademark and a copyright. Trade dress is the look and appearance of a product and includes things like color, shape, texture or form.
Trade dress is in the news today because Glock just settled a case this week against Austrian Sporting Arms, Inc. and ISSC Handles GmbH over a .22 rimfire “copy” of a Glock.
“The lawsuit involved claims for trade dress infringement, trade dress dilution and unfair competition based on ASA’s sales of a .22 caliber pistol known as the M22, which is manufactured in Austria by ISSC. Glock alleged in the lawsuit that the M22 has an appearance that is confusingly similar to the distinctive appearance and overall image of the Glock pistols,” said Glock in a press release.
“Without admitting liability, ASA and ISSC agreed to resolve the matter by redesigning the M22 to differentiate its appearance from the appearance of the Glock family of pistols, to cease further imports of the M22 until the redesign is complete, and to pay Glock an undisclosed amount. The specific terms of the settlement are confidential,” the release added.
Trade dress is a unique form intellectual property. I’m going to discuss IP as it applies to the gun business in a series of Insider blogs over the next week, covering trade dress today, then moving to patents, trademarks and copyrights. Remember—I’m not now, nor have I ever been, a lawyer, but I’ve dealt with IP in all its forms and have a practical, working knowledge of how it applies to the shooting industry.
Back to trade dress…
You would think that the look or appearance of a product would apply to just about anything, and you would be partially correct. The key is that a product must be almost iconic in its unique appearance to be able to claim legal ownership for its “look.”
Accordingly, it takes time for trade dress to kick in. When Glock first introduced its pistol in 1985, it was just a strange black pistol made of plastic. It wasn’t the first polymer handgun—the Steyr GB preceeded it. It wasn’t the first pistol without a manual safety. However, sometime between 1985 and now, Glocks became Glocks—instantly recognizable by their shape. Trade dress was born.
My favorite example of a trade dress lawsuit took place in the late ‘80s over Harry Sanford’s unapologetic copy of Ruger’s Mk I semi-automatic .22 LR pistol. Harry owned AMT (Arcadia Machine & Tool) but he was more famous as the inventor of the Auto Mag. Harry was quite a character, one of those “unique individuals” that make the gun industry the great place that it is.
The story goes that Bill Ruger Sr. contacted Harry and asked him to stop making the AMT Lightning .22. Harry told him thanks, but no thanks. Harry said the patent is long expired and, whatever this nonsense is about “trade dress,” any resemblance between them is entirely coincidental. Harry defiantly kept right on making his AMT 22.
Steve Sanetti, currently the president of NSSF, was then Ruger’s legal counsel. Steve filed suit against Harry for trade dress infringement. Tom Ruger, Bill’s younger son, tried to talk Harry into agreeing to a non-monetary settlement, but Harry’s stubborn streak had kicked in and he wasn’t about to quit.
The case went to trial and Ruger’s legal team, headed by Sanetti, steamrolled Harry’s hapless lawyer who was, pardon the pun, totally out-gunned. Sanetti laid the “exploded parts view” from the owner’s manual for the Ruger Mk. I over the same page of the AMT Lightning .22’s owner’s manual. The jury immediately saw the two guns were identical, contrary to Harry’s claim. The court awarded Ruger $2.8 million in damages, which would have bankrupted AMT.
The story goes that Ruger didn’t want to put Harry out of business, therefore, they worked out an agreement.
It shook out that Harry had to pay two payments of $50,000 over two years and agree to a permanent injunction against making the AMT Lightning. Bill Ruger forgave the remainder of the $2.7 million award, not wanting to put Harry in the poor house.