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How would you analyze the infringement claim as between the below bottles of hot sauce? (The bottle on the left is made by Huy Fong

How would you analyze the infringement claim as between the below bottles of hot sauce? (The bottle on the left is made by Huy Fong Foods; the one on the right is from Trader Joe's.) Huy Fong Foods is the senior user - it was selling its product prior to Trader Joe's.

Which elements on the bottle constitute Huy Fong's trade dress?

Which of the Kemp factors do you have enough information to apply?

  • The strength of the owner's mark
  • The similarity of the owner's mark and the alleged infringer's mark
  • The degree to which the products compete with each other
  • The alleged infringer's intent to "pass off" its goods as those of the trademark owner
  • Incidents of actual confusion
  • The type of product, its costs and conditions of purchase

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