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. (Please see pictures of bottles of hot sauce in the attachment)
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
How would you analyze the infringement claim as between the below bottles of hot
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