PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_______________

No. 19-3010

_______________

EZAKI GLICO KABUSHIKI KAISHA,

a Japanese Corporation d/b/a Ezaki Glico;

EZAKI GLICO USA CORP.,

a California Corporation,

Appellants

v. 

LOTTE INTERNATIONAL AMERICA CORP.; 

LOTTE CONFECTIONARY CO. LTD.

_______________

On Appeal from the United States District Court 

for the District of New Jersey

(D.C. No. 2-15-cv-05477)

District Judge: Honorable Madeline C. Arleo

_______________

Argued: July 9, 2020

Before: McKEE, BIBAS, and FUENTES, Circuit Judges

(Filed: January 26, 2021)

_______________
2

Jessica L. Ellsworth [ARGUED]

Anna K. Shaw 

Neal K. Katyal

Benjamin A. Field

Hogan Lovells US

555 Thirteenth Street, N.W.

Columbia Square

Washington, DC 20004

Steven M. Levitan

Hogan Lovells US

4085 Campbell Avenue 

Menlo Park, CA 94025

Aaron S. Oakley

Hogan Lovells US

1601 Wewatta Street

Denver, CO 80202

Katherine B. Wellington

Hogan Lovells US

125 High Street, Suite 2010

Boston, MA 02110

Roy H. Wepner

Lerner David Littenberg Krumholz & Mentlik

20 Commerce Drive

Cranford, NJ 07016

Counsel for Appellants
3

John J. Dabney [ARGUED]

Mary D. Hallerman 

Snell & Wilmer

2001 K Street, N.W.

Suite 425 North 

Washington, DC 20006

Counsel for Appellees

David H. Bernstein 

Debevoise & Plimpton 

919 Third Avenue 

New York, NY 10022

Bruce R. Ewing 

Dorsey & Whitney 

51 West 52nd Street

New York, NY 10019

Jonathan E. Moskin 

Foley & Lardner 

90 Park Avenue 

New York, NY 10016 

Claudia E. Ray 

Kirkland & Ellis 

601 Lexington Avenue 

New York, NY 10022 

Counsel for Amicus Curiae in support of Appellants

International Trademark Association, on Petition for 

Rehearing
4

Theodore H. Davis, Jr. 

Kilpatrick Townsend 

1100 Peachtree Street, Suite 2800

Atlanta, GA 30309 

Sara K. Stadler 

Kilpatrick Townsend 

1114 Avenue of the Americas 

The Grace Building, 21st Floor 

New York, NY 10036 

Counsel for Amicus Curiae in support of Appellants

National Confectioners Association, on Petition for 

Rehearing

Adam H. Charnes 

Kilpatrick Townsend 

2001 Ross Avenue, Suite 4400 

Dallas, TX 75201 

Charles H. Hooker, III

Kilpatrick Townsend 

1100 Peachtree Street, Suite 2800

Atlanta, GA 30309 

J. David Mayberry 

Rita M. Weeks

Kilpatrick Townsend 

1114 Avenue of the Americas 

The Grace Building, 21st Floor 

New York, NY 10036 

Counsel for Amicus Curiae in support of Appellants

Mondelez Global LLC, on Petition for Rehearing
5

_______________

OPINION OF THE COURT

_______________

BIBAS, Circuit Judge. 

This is a tale of more than just desserts. Decades ago, Ezaki 

Glico invented Pocky, a chocolate-covered cookie stick. Pocky 

was very popular. And its success drew imitators, including 

Lotte’s Pepero. Ezaki Glico now sues Lotte for trade-dress infringement.

The District Court granted Lotte summary judgment, finding that because Pocky’s design is functional, Ezaki Glico has 

no trade-dress protection. We agree. Trade dress is limited to 

designs that identify a product’s source. It does not safeguard

designs that are functional—that is, useful. Patent law protects 

useful inventions, but trademark law does not. We will thus

affirm.

I. BACKGROUND

A. A cookie is born: Ezaki Glico’s Pocky 

Ezaki Glico is a Japanese confectionery company. For more 

than half a century, it has made and sold Pocky: a product line 

of thin, stick-shaped cookies (what the British call biscuits).

These cookies are partly coated with chocolate or a flavored 

cream; some have crushed almonds too. The end of each is left 

partly uncoated to serve as a handle. Ezaki Glico makes Pocky 

in both a standard and an “Ultra Slim” size. Appellant’s Br. 9.
6

In 1978, Ezaki Glico started selling Pocky in the United 

States through its wholly owned subsidiary here. Since then, it 

has tried to fend off competitors by registering U.S. trademarks 

and patents. It has two Pocky product configurations registered 

as trade dresses. 

Ezaki Glico also has a utility patent for a “Stick Shaped 

Snack and Method for Producing the Same.” App. 1013–16.

The first thirteen claims in the patent describe methods for 

making a stick-shaped snack. The final claim covers “[a] stickshaped snack made by the method of claim 1.” App. 1016. The 

width of that stick-shaped snack matches that of Pocky Ultra 

Slim. 

B. A new cookie comes to town: Lotte’s Pepero

Imitation is the sincerest form of flattery, and others have 

noted Pocky’s appeal. Starting in 1983, another confectionery 

company called Lotte started making Pepero. These snacks are 

also stick-shaped cookies (biscuits) partly coated in chocolate 

or a flavored cream, and some have crushed almonds too. It 

looks remarkably like Pocky. Here are the two products side

by side: 
7

See App. 980–83, 1018–19, 1021–24. Lotte and its U.S. subsidiary have been selling Pepero in the United States for more 

than three decades. 

C. Ezaki Glico’s trade-dress suit 

From 1993 to 1995, Ezaki Glico sent letters to Lotte, notifying Lotte of its registered trade dress and asking it to cease 

and desist selling Pepero in the United States. Lotte assured 

Ezaki Glico that it would stop until they resolved their dispute. 

But Lotte resumed selling Pepero. For the next two decades, 

Ezaki Glico took no further action.

In 2015, Ezaki Glico sued Lotte in federal court for selling 

Pepero. Under federal law, Ezaki Glico alleged trademark 
8

infringement and unfair competition, in violation of the Lanham (Trademark) Act §§32 and 43(a), 15 U.S.C. §§1114, 

1125(a)(1)(A). Under New Jersey law, it alleged trademark infringement and unfair competition, in violation of both the 

common law and the New Jersey Fair Trade Act, N.J.S.A. 

§56:4-1 and 2. 

After discovery, the District Court granted summary judgment for Lotte, holding that because Pocky’s product configuration is functional, it is not protected as trade dress. Kaisha v. 

Lotte Int’l Am. Corp., No. 15-5477, 2019 WL 8405592, at *3 

(D.N.J. July 31, 2019).

Ezaki Glico now appeals. The District Court had jurisdiction under 15 U.S.C. §§1119 and 1121(a) and 28 U.S.C. 

§§1331, 1338, and 1367. We have jurisdiction under 28 U.S.C. 

§1291.

We review the District Court’s grant of summary judgment

de novo. Cranbury Brick Yard, LLC v. United States, 943 F.3d 

701, 708 (3d Cir. 2019). We will affirm if no material fact is 

genuinely disputed and if, viewing the facts most favorably to

Ezaki Glico, Lotte merits judgment as a matter of law. Fed. R. 

Civ. P. 56(a). Both of Ezaki Glico’s Lanham Act claims depend on the validity of its trade dress. New Jersey’s unfaircompetition and trademark laws are not significantly different 

from federal law, so our analysis of Ezaki Glico’s Lanham Act 

claims applies equally to dispose of its state-law claims. See 

Am. Greetings Corp. v. Dan-Dee Imports, Inc., 807 F.2d 1136, 

1141 (3d Cir. 1986); 3 J. Thomas McCarthy, McCarthy on 

Trademarks and Unfair Competition §22:1.50 (5th ed. 2020). 

Following the parties’ lead, we focus on federal trademark law.
9

II. TRADE-DRESS LAW DOES NOT PROTECT PRODUCT 

DESIGNS THAT ARE USEFUL

Under the statute, the key issue is whether Pocky’s trade 

dress is functional. Lotte says that it is; Ezaki Glico says no.

Ezaki Glico equates “functional” with “essential.” Appellants’ 

Br. 18, 25 (emphases omitted). But that test is too narrow. It

misreads the Lanham Act’s text and its relationship with the 

Patent Act. Under both the statute and the case law, a feature’s 

particular design is functional if it is useful. And there are several ways to show functionality.

A. Patent law protects useful designs, while trademark 

law does not

Copying is usually legal. It is part of market competition. 

As a rule, unless a patent, copyright, or the like protects an 

item, competitors are free to copy it. TrafFix Devices, Inc. v. 

Mktg. Displays, Inc., 532 U.S. 23, 29 (2001). 

The Constitution does authorize Congress to grant exclusive patents and copyrights “[t]o promote the Progress of Science and useful Arts,” but only “for limited Times.” U.S. 

Const. art. I, §8, cl. 8. Utility patents promote “Science and

useful Arts” by protecting inventions that are “new and useful.” 35 U.S.C. §101. Design patents protect “any new, original 

and ornamental design.” Id. §171(a). In keeping with the Constitution’s time limit, utility patents last for twenty years, and

design patents last for only fifteen years. Id. §§154(a)(2), 173. 

If there is no patent, or once a patent expires, competitors are 

free to copy “publicly known design and utilitarian ideas.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 152 
10

(1989); accord Qualitex Co. v. Jacobson Prod. Co., Inc., 514 

U.S. 159, 164 (1995). This way, sellers can compete and build 

on one another’s innovations. That competition improves quality and lowers consumers’ costs.

By contrast, trademark law protects not inventions or designs per se, but branding. A trademark is a “word, name, symbol, or device ... used by a person[] ... to identify and distinguish his or her goods ... from those manufactured or sold by 

others and to indicate the source of the goods.” 15 U.S.C. 

§1127. Trademark law can protect a product’s “trade dress[,]

[which] is the overall look of a product or business.” Fair Wind 

Sailing, Inc. v. Dempster, 764 F.3d 303, 308 (3d Cir. 2014).

That includes not only a product’s packaging but also its design, such as its size, shape, and color. Id.; Wal-Mart Stores, 

Inc. v. Samara Bros., 529 U.S. 205, 209 (2000).

We are careful to keep trademark law in its lane. Trade 

dress, like trademark law generally, is limited to protecting the 

owner’s goodwill and preventing consumers from being confused about the source of a product. Shire US Inc. v. Barr 

Labs., Inc., 329 F.3d 348, 353 (3d Cir. 2003). We must not 

overextend it to protect all of a product’s features, because 

“product design almost invariably serves purposes other than 

source identification.” TrafFix, 532 U.S. at 29 (quoting WalMart, 529 U.S. at 213). “Trade dress protection ... is not intended to create patent-like rights in innovative aspects of 

product design.” Shire, 329 F.3d at 353. If it did, it could override restrictions on what is patentable and for how long. Qualitex, 514 U.S. at 164–65. After all, trademarks have no time 

limit.
11

The functionality doctrine keeps trademarks from usurping 

the place of patents. The Patent and Trademark Office cannot 

register any mark that “comprises any matter that, as a whole, 

is functional.” 15 U.S.C. §1052(e)(5). Even after a mark is registered, it is a defense to infringement “[t]hat the mark is functional.” Id. §1115(b)(8); see also id. §1125(a)(3) (providing 

that the holder of an unregistered mark must prove that the 

mark “is not functional”). Thus, even if copying would confuse 

consumers about a product’s source, competitors may copy unpatented functional designs.

B. Functional designs need not be essential, 

just useful

The core dispute here is how to define “functional.” Ezaki 

Glico reads it narrowly, equating it with “essential.” Appellant’s Br. 18, 25. But that is not what the word means.

Since the Lanham Act does not define functionality, we 

start with its ordinary meaning. A feature’s design is functional 

if it is “designed or developed chiefly from the point of view 

of use: UTILITARIAN.” Functional (def. 2a), Webster’s Third 

New International Dictionary (1966). So something is functional as long as it is “practical, utilitarian”—in a word, useful. 

Functional (def. 2d), Oxford English Dictionary (2d ed. 1989). 

The word requires nothing more.

Reading functionality as usefulness explains how the Lanham Act fits with the Patent Act. Utility patents, not trademarks, protect inventions or designs that are “new and useful.” 

35 U.S.C. §101. If the Lanham Act protected designs that were 

useful but not essential, as Ezaki Glico claims, it would invade 
12

the Patent Act’s domain. Because the Lanham Act excludes 

useful designs, the two statutes rule different realms.

Precedent also supports defining functional as useful. In 

Qualitex, the Supreme Court described the functionality doctrine as protecting competition by keeping a producer from perpetually “control[ling] a useful product feature.” 514 U.S. at 

164. In TrafFix, the Court described functionality as depending 

on whether “the feature in question is shown as a useful part of 

the invention.” 532 U.S. at 34. It contrasted functional features 

disclosed in a utility patent with “arbitrary, incidental, or ornamental aspects” that “do not serve a purpose within the terms 

of the utility patent.” Id. And in Wal-Mart, the Court contrasted 

designs that only “identify the source” with those that “render 

the product itself more useful or more appealing.” 529 U.S. at 

213. “[M]ore useful or more appealing” is a far cry from essential.

Conversely, a design is not functional if all it does is identify its maker. “Proof of nonfunctionality generally requires a 

showing that the element of the product serves no purpose 

other than identification.” Keene Corp. v. Paraflex Indus., Inc., 

653 F.2d 822, 826 (3d Cir. 1981) (quoting SK&F, Co. v. Premo 

Pharm. Labs., Inc., 625 F.2d 1055, 1063 (3d Cir. 1980)). But 

if a design gives a product an edge in usefulness, then it is functional.

Ezaki Glico resists this reading by focusing on one phrase

from Qualitex. The heart of its claim is the first sentence of its 

argument: “A product’s configuration is functional for purposes of trade dress protection only ‘if it is essential to the use 

or purpose of the article or if it affects the cost or quality of the 
13

article.’” Appellants’ Br. 22 (quoting Qualitex, 514 U.S. at 

165, and adding the emphasis). But the word “only” is nowhere 

on the page it cites. Though Ezaki Glico’s forceful brief repeats 

“essential” more than four dozen times and structures its case 

around that touchstone, the authority does not support its drumbeat.

On the contrary, the Supreme Court recognizes several 

ways to show that a product feature is functional. One way is 

indeed to show that a feature “is essential to the use or purpose 

of the article.” Qualitex, 514 U.S. at 165 (quoting Inwood 

Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 n.10 (1995)). 

Another is if “it affects the cost or quality of the article.” Id.

(Ezaki Glico keeps skipping over this part of the test.) At least 

in some cases, a feature is functional and unprotected if the 

“exclusive use of [the feature] would put competitors at a significant non-reputation-related disadvantage.” TrafFix, 532 

U.S. at 32 (quoting Qualitex, 514 U.S. at 165). All of these are 

different ways of showing usefulness. (Though this last inquiry

is especially apt for proving aesthetic functionality, the Court 

has not specifically limited it to that context. See TrafFix, 532 

U.S. at 33.) On the other hand, a feature is “not functional” if, 

for instance, “it is merely an ornamental, incidental, or arbitrary aspect of the device.” Id. at 30.

We analyze functionality not at the level of the entire product or type of feature, but at the level of the particular design 

chosen for feature(s). Just “because an article is useful for 

some purpose,” it does not follow that “all design features of 

that article must be ‘functional.’ ” 1 McCarthy §7:70 (emphases added). The question is not whether the product or feature 
14

is useful, but whether “the particular shape and form” chosen 

for that feature is. Id.

For instance, though ironing-board pads need “to use some

color ... to avoid noticeable stains,” there is no functional reason to use green-gold in particular. Qualitex, 514 U.S. at 166. 

Though French press coffeemakers need some handle, there is 

no functional reason to design the particular handle in the shape 

of a “C.” Bodum USA, Inc. v. A Top New Casting Inc., 927 F.3d 

486, 492–93 (7th Cir. 2019) (also noting that the design sacrificed ergonomics). And though armchairs need some armrest, 

there is no functional reason to design the particular armrest as 

a trapezoid. Blumenthal Distrib., Inc. v. Herman Miller, Inc., 

963 F.3d 859, 867–68 (9th Cir. 2020) (also noting that the design sacrificed comfort). Ironing-board colors, coffee-pot handles, and armrests are all generally useful. But the particular 

designs chosen in those cases offered no edge in usefulness.

Also, a combination of functional and non-functional features can be protected as trade dress, so long as the non-functional features help make the overall design distinctive and 

identify its source. See Am. Greetings, 807 F.2d at 1143.

But a product’s design, including its shape, is often useful 

and thus functional. For example, when Nabisco sued Kellogg 

for making its shredded wheat pillow-shaped, just like 

Nabisco’s, the Supreme Court rejected the unfair-competition 

claim. The pillow shape is functional because using another 

shape would increase shredded wheat’s cost and lower its quality. Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111, 122 (1938). 

For the same reason, the Court rejected a challenge to copying 

the exact shape of a pole lamp. Sears, Roebuck & Co. v. Stiffel 
15

Co., 376 U.S. 225, 231–32 (1964). And if an inventor created 

a new light-bulb shape that improved illumination, he could 

not trademark that shape. Qualitex, 514 U.S. at 165. That 

would be true even if consumers associated the bulb shape with 

its inventor, because trademarking it would “frustrat[e] competitors’ legitimate efforts to produce an equivalent illumination-enhancing bulb.” Id. So long as the design improves cost, 

quality, or the like, it cannot be protected as trade dress. The 

shape need only be useful, not essential. Conversely, a distinctive logo, pattern, or other arbitrary shape or style may be nonfunctional and protectable as a trade dress.

As the leading trademark treatise concurs, “functional” 

means useful. “To boil it down to a phrase: something is ‘functional’ if it works better in this shape.” 1 McCarthy §7:63. That 

includes features that make a product cheaper or easier to make 

or use. Id. Because the functionality bar is supposed to keep 

“trade dress from creating ‘back-door patents,’ ... . the test of 

what is ‘functional’ should be very similar to that of patent 

law.” Id. §7:67.

C. Evidence of functionality

There are several ways to prove functionality. First, evidence can directly show that a feature or design makes a product work better. See Am. Greetings, 807 F.2d at 1142 (treating 

as functional “tummy graphics” on teddy bears because they 

signal each bear’s personality). Second, it is “strong evidence” 

of functionality that a product’s marketer touts a feature’s usefulness. Id. at 1142–43. Third, “[a] utility patent is strong evidence that the features therein claimed are functional.” 

TrafFix, 532 U.S. at 29. Fourth, if there are only a few ways to 
16

design a product, the design is functional. Keene, 653 F.2d at

827. But the converse is not necessarily true: the existence of 

other workable designs is relevant evidence but not independently enough to make a design non-functional. Id.; 1 

McCarthy §7:75 (interpreting TrafFix, 532 U.S. at 33–34).

Our list is not exhaustive; there may be other considerations. The Federal Circuit and other sister circuits also use similar inquiries. See, e.g., Georgia-Pac. Consumer Prods. LP v. 

Kimberly-Clark Corp., 647 F.3d 723, 727–28 (7th Cir. 2011); 

Disc Golf Ass’n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 

1006 (9th Cir. 1998); In re Morton-Norwich Prods., Inc., 671 

F.2d 1332, 1340–41 (C.C.P.A. 1982) (predecessor to the Federal Circuit).

With these definitions and inquiries in mind, we can now

apply them to this case. 

III. POCKY’S TRADE DRESS IS FUNCTIONAL

To decide whether a trade dress is functional, we look at the

usefulness of the exact feature or set of features claimed by the 

trade dress. See Am. Greetings, 807 F.2d at 1141. Ezaki Glico 

has two registered Pocky trade dresses, both broad. The first 

“comprises an elongated rod comprising biscuit or the like, 

partially covered with chocolate.” App 10, 1448. The second 

consists of the same sort of snack, along with almonds on top 

of the chocolate or cream. 
17

In a picture, Ezaki Glico’s trade dresses include all cookies

like these: 

App. 292. The trade dresses are presumptively valid because 

they are registered and incontestable. See 15 U.S.C. §1115. So 

Lotte bears the burden of proving that they are functional. Id.

§§1115(a), (b)(8).

Ezaki Glico argues that none of these features is essential 

to make the snack easy to eat. But that is the wrong test. Lotte 

has shown that Pocky’s design is useful and thus functional. 

A. Pocky’s design makes it work better as a snack

Every feature of Pocky’s registration relates to the practical 

functions of holding, eating, sharing, or packing the snack. 

Consider each stick’s uncoated handle. Ezaki Glico’s internal 

documents show that it wanted to make a snack that people 

could eat without getting chocolate on their hands. Pocky was 

born when Ezaki Glico found that it could coat just part of a 
18

cookie stick, leaving people an uncoated place to hold it. So it

designed Pocky’s handle to be useful.

The same is true of Pocky’s stick shape. As Ezaki Glico 

recognizes, the stick shape makes it “easy to hold, so it c[an] 

be shared with others to enjoy as a snack.” App. 595. It also 

lets people eat the cookie without having to open their mouths 

wide. And the thin, compact shape lets Ezaki Glico pack many 

sticks in each box, enough to share with friends.

Viewed as a whole, Pocky’s trade dress is functional. The 

claimed features are not arbitrary or ornamental flourishes that 

serve only to identify Ezaki Glico as the source. The design 

makes Pocky more useful as a snack, and its advantages make 

Pocky more appealing to consumers for reasons well beyond 

reputation. See Kellogg, 305 U.S. at 120. As Ezaki Glico’s own 

documents acknowledge, “Pocky provides a functional value 

[Enjoy chocolate lightly].” App. 636 (bracketed material in 

original).

B. Ezaki Glico promotes Pocky’s utilitarian

advantages

There is plenty of evidence that Ezaki Glico promotes 

Pocky’s “convenient design.” App. 646. Its ads tout all the useful features described above. It advertises “the no mess handle 

of the Pocky stick,” which “mak[es] it easier for multi-tasking 

without getting chocolate on your hands.” App. 648, 651. It 

also describes Pocky as “[p]ortable,” since “one compact, 

easy-to-carry package holds plentiful amounts of Pocky.” App. 

648. “With plenty of sticks in each package, Pocky lends itself 
19

to sharing anytime, anywhere, and with anyone.” App. 655. 

These promotions confirm that Pocky’s design is functional.

C. There are alternative designs, but that does not 

make Pocky’s design non-functional 

Lotte could have shaped its Pepero differently. Ezaki Glico 

offers nine examples of partly-chocolate-coated snacks that do 

not look like Pocky. That is hardly dispositive. As we noted in 

Keene, even when there are alternatives, the evidence can still 

show that a product design is functional. 653 F.3d at 827. That 

is true here. Every aspect of Pocky is useful. The nine other 

designs do not make it less so.

D. Ezaki Glico’s utility patent for a manufacturing 

method is irrelevant

Finally, Lotte argues that Ezaki Glico’s utility patent for a 

“Stick Shaped Snack and Method for Producing the Same” 

proves functionality. It does not.

As TrafFix explained, “[a] utility patent is strong evidence 

that the features therein claimed are functional.” 532 U.S. at 

29. This is because patented items must be “useful.” 35 U.S.C. 

§101. If a patentee relied on a product’s feature to show that 

the product was patentable, that reliance is good evidence that 

the feature is useful. As TrafFix put it, the question is whether 

the “central advance” of the utility patent is also “the essential 

feature of the trade dress” that the owners want to protect. 532 

U.S. at 30. So Ezaki Glico’s utility patent would be strong evidence of functionality if the features it claimed overlapped 

with its trade dress. But they do not.
20

The trade dress that Ezaki Glico defends is a stick-shaped 

snack that is partly coated with chocolate or cream. Yet those 

features are not the “central advance” of its utility patent. Instead, the patent’s innovation is a better method for making the

snack’s stick shape. The method is useful for making the shape 

whether or not the shape itself is useful for anything. Thus, the 

patent’s mention of the shape says nothing about whether the 

shape is functional.

The District Court erroneously considered the utility patent. 

But that error was immaterial. Even setting that aside, many 

other factors show that Pocky’s trade dress is functional and so 

not protectable. Thus, the District Court properly granted summary judgment for Lotte. We need not reach other possible 

grounds for affirmance.

* * * * *

Though Ezaki Glico created Pocky, it cannot use trade

dress protection to keep competitors from copying it. The Lanham Act 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. Ezaki Glico has 

not borne its burden of showing nonfunctionality. TrafFix, 532 

U.S. at 32. There is no real dispute that Pocky’s design is useful, so the trade dress is not protectable. We will thus affirm. 

That’s the way the cookie crumbles.