Document Type


Publication Date


Journal Title

Hastings Law Journal




We take it largely for granted today that the Trademark Act of 1946 permits the registration of trade dress on the principal register, but that has not always been the rule. Until 1958, the Patent and Trademark Office, following Congress's intent expressed in the Act's plain language and legislative history, excluded trade dress from the principal register as a matter of law. In 1958, Assistant Commissioner Daphne Robert Leeds changed the rule and allowed the registration of a product package as a trademark on the principal register. Unable to find any legitimate basis for reading the Trademark Act to permit trade dress on the principal register, Leeds simply asserted her desired result as conclusion, willfully replacing Congress's decision on the issue with her own. Time has largely erased our memories of trade dress's dubious claim to the principal register. And courts, over the last twenty years, have crafted an extensive regime of federal trade dress protection out of Leeds's erroneous interpretation. Yet, even today, a fair-minded review of the Trademark Act of 1946 and its legislative history reveals that there is no lawful basis for allowing trade dress on the principal register. As with the Emperor and his new clothes, the only real question is whether, following its revelation, courts and the Patent and Trademark Office are willing to recognize this naked truth.

First Page


Last Page


Volume Number


Issue Number



University of California Hastings College of Law

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.