Cecily Zamora
Trade dress is a form of intellectual property protection law that deals with the visual appearance of a product, its packaging, or even the design of a building. It is an extension of trademark protection, focusing on the design and shape of the materials and products. Trade dress can be protected under common law, providing federal common-law protection, even without formal registration. However, registration with the US Trademark Office offers significant advantages in terms of intellectual property protections. To gain common-law protection, trade dress must be distinctive and not functional, serving no purpose other than creating recognition in the consumer's mind. This distinctiveness can be achieved inherently or through secondary meaning, where consumers associate the trade dress with the source of the product. Trade dress protection is a developing area, with ongoing discussions about its application to websites and ongoing evolution of the law.
| Characteristics | Values |
|---|---|
| Registration | Trade dress can be registered with the PTO in the Principal Register or the Supplemental Register. Registration is not required for legal protection, but it offers several advantages, including nationwide constructive use and constructive notice. |
| Distinctiveness | Trade dress must be "distinctive" to gain registration or common-law protection. This means that consumers perceive the trade dress as identifying the source of a product. Distinctiveness can be achieved through "secondary meaning," where the use of the trade dress in the market creates an association between the trade dress and the product in the consumer's mind. |
| Functionality | Trade dress must not be "functional" to be protected. The configuration of shapes, designs, colors, or materials that make up the trade dress must not serve a utility or function outside of creating recognition for the consumer. |
| Likelihood of Confusion | Trade dress infringement occurs when one product's design or packaging copies or mimics another to the extent that there is a likelihood of confusion in the minds of consumers regarding the product's origin. |
| Fair Use | Fair use is a defense to claims of trade dress infringement. It applies when a defendant uses elements of the trade dress to describe the product, not to identify the source of the product. Use of trade dress for news reporting, commentary, criticism, artistic works, parody, or satire may also avoid infringement claims. |
| International Recognition | While Chinese law does not recognize trade dress, its Anti-Unfair Competition Law protects the packaging, decoration, or appearance of a "well-known commodity," which accomplishes similar protections. |
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What You'll Learn
Trade dress is an aspect of trademark law
To gain registration in the Principal Register or common law protection under the Lanham Act, a trade dress must be \"distinctive\" and non-functional. Distinctiveness means that consumers perceive a particular trade dress as identifying the source of a product. Product packaging can be inherently distinctive, but product design can only become distinctive through "secondary meaning". Secondary meaning refers to when the use of the trade dress in the market has created an association between that trade dress and a source in the consumer's mind.
Trade dress rights, like trademark rights, are governed by and protected by a mixture of the Federal Lanham Act, individual state laws, and common law. Although a product’s trade dress can receive certain common law protections, registering trade dress with the U.S. Trademark Office provides the owner with significantly more intellectual property protections. Trade dress may be registered with the PTO in either the Principal Register or the Supplemental Register. Registration is not required for legal protection, but it offers several advantages, such as nationwide constructive use and constructive notice, which prevent others from using or registering that registrant's trade dress.
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Registration is not required for legal protection
Trade dress is a form of intellectual property protection law that covers the visual characteristics of a product, its packaging, or even the design of a building. It is an extension of trademark protection to the design and shape of the materials in which a product is packaged, and sometimes the product configuration or product design itself. Product design trade dress will not be considered distinctive without evidence that it has acquired a secondary meaning. Secondary meaning refers to the use of the trade dress in the market (the "goodwill" of the trade dress) creating an association between that trade dress and a source in the consumer's mind.
While trade dress is commonly associated with providing "federal common law" protection, registration is not required for legal protection. Trade dress that is not registered may still be protected under federal law if certain factors are met. Firstly, the trade dress must not serve a "functional" purpose. The functionality doctrine states that the configuration of shapes, designs, colours, or materials that make up the trade dress in question must not serve a utility or function outside of creating recognition in the consumer's mind. Secondly, the trade dress must be "'distinctive', either inherently or because it has acquired secondary meaning. Distinctiveness refers to consumers perceiving a particular trade dress as identifying the source of a product.
In an infringement case, there must also be a likelihood of confusion between the trade dresses in question. This means that the owner of the trade dress must be able to prove that the average consumer would be confused as to the origin of a product if another product appears in the same or similar packaging. For example, the United States Supreme Court found that a Mexican restaurant chain's decor was inherently distinctive because it featured a mural, brightly coloured pottery, distinctive outdoor umbrellas, neon border stripes, and a novel style of service.
Although registration is not necessary, registering trade dress with the U.S. Trademark Office provides the owner with significantly more intellectual property protections. Registration offers advantages such as nationwide constructive use and constructive notice, which prevent others from using or registering that registrant's trade dress.
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Trade dress must be distinctive
Trade dress is a type of trademark that can protect the overall appearance of a product, company, or service. It can include features like colour, shape, design, packaging, and more. Trade dress is often overlooked, but it can be a powerful tool to help businesses distinguish their products and services from the competition.
To gain registration in the Principal Register or common-law protection under the Lanham Act, a trade dress must be "distinctive". This means that consumers perceive a particular trade dress as identifying a source of a product. For example, the Coca-Cola bottle’s shape is widely considered one of the most famous trade dress marks worldwide. This iconic shape has been a federally registered trademark for over four decades, since 1977. The unique shape and design of Chevrolet’s Corvette sports car is another example of a distinctive trade dress.
Distinctiveness can be achieved through "secondary meaning". This means that although a trade dress is not distinctive on its face, the use of the trade dress in the market has created an association between that trade dress and a source in the consumer's mind. Product packaging, including the interior design of a business or restaurant, can be inherently distinctive. However, product design can only become distinctive by secondary meaning. In determining whether trade dress is inherently distinctive, a court will look at whether the dress is a “common” basic shape or design, such as a circle.
Trade dress must also be non-functional to be protected. The configuration of shapes, designs, colours, or materials that make up the trade dress in question must not serve a utility or function outside of creating recognition in the consumer's mind. For example, the colour red in a line of clothing may not be functional, whereas the same colour on a stop sign would be functional because it serves the function of alerting drivers.
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Trade dress must not be functional
Trade dress is an aspect of trademark law, which is a form of intellectual property protection law. It refers to the characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress can also protect the look and feel of a website or mobile app if it is not protected by copyright law.
To gain registration in the Principal Register or common-law protection under the Lanham Act, a trade dress must be distinctive and must not be functional. Distinctiveness means that consumers perceive a particular trade dress as identifying the source of a product. This can be achieved through secondary meaning, where the use of the trade dress in the market has created an association between that trade dress and a source in the consumer's mind.
The functionality of a trade dress depends on the specific product or thing sought to be protected. Trade dress that is functional and essential to the purpose or use of the product cannot be protected as a trademark. Only designs and shapes created solely for promotional purposes are protected as trade dress. For example, certain perfume bottles and their boxes are designed to be identifiable with a particular brand.
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Trade dress infringement
Trade dress is the characteristics of the visual appearance of a product, its packaging, or even the design of a building that indicates the product's source to consumers. It is an aspect of trademark law and is a form of intellectual property protection law. Trade dress is an extension of trademark protection to the design and shape of the materials in which a product is packaged. Product configuration, the design and shape of the product itself, may also be considered a form of trade dress.
Trade dress rights, like trademark rights, are governed by and protected by a mixture of the Federal Lanham Act, individual state laws, and common law. Trade dress infringement occurs when one product's design or packaging copies or mimics that of another product to the extent that there is a likelihood of confusion in the mind of the purchasing public. In addition to making a claim for infringement, a plaintiff may also make claims of dilution, which is the weakening in the ability of a trademark to clearly distinguish its source.
To gain registration in the Principal Register or common-law protection under the Lanham Act, a trade dress must be distinctive. This means that consumers perceive a particular trade dress as identifying a product's source. To sue for infringement of trade dress, one must be able to articulate and prove that their trade dress is inherently distinctive or has acquired secondary meaning, and that the junior use is likely to cause consumer confusion. Trade dress can be protected only if the owner of the trade dress can show that an average consumer would be confused about a product's origin if another product appears in the same or similar packaging.
Registration on the U.S. Trademark Office's Principal Register is the best and easiest way to show distinctiveness, because distinctiveness is necessary for trade dress registration. However, common-law trade dress rights holders can still make the claim for distinctiveness in a trade dress infringement case. When considering distinctiveness, courts look at product design and product packaging. Product packaging, including the interior design of a business or restaurant, can be inherently distinctive. Fair use is a common defense to claims of trade dress infringement. It can be raised when a defendant utilizes elements of the plaintiff’s trade dress to describe the plaintiff’s products, not to identify the plaintiff as the source of the goods or services.
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Frequently asked questions
Trade dress refers to the characteristics of the visual appearance of a product, its packaging, or even the design of a building, that signify the source of the product to consumers.
To gain common law protection under the Lanham Act, a trade dress must be distinctive and not functional. Distinctiveness means that consumers perceive a particular trade dress as identifying the source of a product. Non-functionality means that the configuration of shapes, designs, colours, or materials that make up the trade dress in question must not serve a utility or function outside of creating recognition in the consumer's mind.
Some examples of trade dress include the packaging or labelling of goods, product configuration (the design of a product), the flavour of the product, the colour of a product, the layout of a restaurant, or the design of a retail store. For example, the Birkin bag by Hermès enjoys trade dress protection because its appearance alone signifies the source of the product (Hermès) to consumers.
