In a battle between the producers of reality television shows "Wife Swap" and "Trading Spouses," a California federal court held that trade dress cannot be invoked to provide perpetual protection for what are essentially copyright claims. As a result, the court dismissed plaintiff's claim that defendants have imitated the "total image and appearance," or trade dress, of the "Wife Swap" show.
The Court acknowledged that the same elements of a work may be protected as both copyrightable expression and trade dress. However, it held that such a finding in this case would lead to the misguided conclusion that "every incidence of visual expression would be subject to copyright and trademark protection and that protection would last in perpetuity." 372 F.Supp.2d at 564.
[This case is cited as: RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556 (C.D. Cal. 2005).]