The U.S. District Court in Brooklyn, NY, has granted a preliminary injunction against Dae Do International and New High Glass (bottle supplier to Dae Do), prior to their introducing a line of nail polishes packaged almost identically to Essie Cosmetics' line.
Essie Cosmetics sought a ruling against the companies for trademark infringement. Dae Do International had intended to enter the market with a bottle and cap design similar to Essie's (which is a clear, square glass bottle with a simple cylindrical cap and no identifying label), but it had a small peel-off label on one side. The court order prohibits Dae Do and New High Glass from continued production pending the outcome of the case.
In his decision, Judge Jack B. Weinstein says, "Her [Essie Cosmetics] trade dress is, in effect, the absence of trade dress. She has deliberately marketed her bottle to focus on the colors of the nail polish and to permit salon owners, if they wish, to personalize the product. The important factor is that her customers associate the trade dress in her bottle design with her alone."
John Y. Chang, executive director of Dae Do, disputes the preliminary ruling, saying, "[Essie Cosmetics] doesn't own the square bottle. Many [nail product] companies enter the market with the same bottle as another manufacturer. [Essie] doesn't own the bottle design or have a copyright, and it is not hers to monopolize."