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advertising execution expenditures account for at least some of
the value of the typical trade dress. Since advertising
execution expenditures are ordinary business expenses, we
conclude that the long-term benefit associated with trade dress
is a benefit traditionally associated with ordinary business
advertising. It therefore cannot serve as a basis to require the
capitalization of the litigated expenses.
In connection with his discussion of trade dress, respondent
refers to the copyright and trademark protection available to the
various elements making up trade dress. The parties have
stipulated, however, that Reynolds placed notices of copyright on
its advertising executions, and exhibits in evidence establish
that other companies did the same. Thus, we conclude that
copyright protection afforded to copyrightable advertising
materials is a traditional benefit associated with ordinary
business advertising, and, for that reason, it cannot serve as
the basis for requiring the capitalization of the litigated
expenses.
With respect to trademark protection, the parties have
stipulated that none of the litigated expenses were incurred in
connection with the purchase, creation, acquisition, protection,
expansion, registration, or defense of a trademark or trade name.
As to the economic interests of Reynolds benefited by the
litigated expenses, petitioner agrees with respondent’s expert,
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