From Judge Stephanos Bibas’s opinion today (joined by Judges Theodore McKee and Julio Fuentes) in Ezaki Glico Kabushiki Kaisha v. Lotte Int’l America Corp.:
Though Ezaki Glico created Pocky, it cannot use trade dress to keep competitors from copying it. Trade dress protects features that serve only to identify their source. It does not cover functional (that is, useful) features. That is the domain of patents, not trademarks. There is no real dispute that Pocky’s design is useful, so the trade dress is invalid. We will thus affirm. That’s the way the cookie crumbles.
Thanks to How Appealing for the pointer.