Trade dress is a subcategory of trademark law. It refers to the overall image (look and feel) of a product or service. Additionally, trade dress identifies its source and distinguishes it from those of others. Trade dress protection applies to product packaging, design, or configuration of goods. For services, trade dress refers to the “total visual image.” Such as a restaurant’s décor, menu, layout, and style of service. A company’s trade dress can be extremely valuable by distinguishing goods and services from competitors thereby attracting customers to the brand. A couple of well-known examples are the shape of a Coca-Cola glass bottle and Apple’s store design.
We work with clients at all steps of the trade dress protection process from clearance opinion to registration, enforcement, litigation and licensing.
Trade Dress Protection
It can be difficult to obtain trade dress protection. Though similar to trademark protection. The requirements are more stringent and complicated. For example, trade dress must be primarily nonfunctional. We have substantial experience in all facets of trade dress counseling and protection, including for example:
- Trade Dress Registration
- Trade Dress Enforcement
- Defense of Trade Dress Claims, including Intellectual Property Litigation
The following factors are necessary for obtaining trade dress registration:
- Serves as a source identifier
- Is unique and distinctive among others in the marketplace
- Used in commerce
- Must be nonfunctional
We work with our clients at all steps of the trade dress protection process. Our comprehensive approach to protection includes development and enforcement of trade dress to manage and control the company’s image.
Enforceability of trade dress often overlaps with other areas of intellectual property law, including copyrights and patents. For example, design patents protect the appearance and aesthetic features of a product, similar to protection obtained from trade dress. Our extensive trademark protection experience, coupled with our experience in other areas of intellectual property, allows us to help clients identify all aspects of protection and work to fully protect their rights.
Trade Dress Registration
Like a trademark, trade dress is protected under the Lanham Act. Protection can be achieved through use or through federal registration. Trade dress registration offers advantages, although registration is not required for legal trade dress protection. Additionally, registering trade dress can be challenging. The trade dress must be both distinctive and nonfunctional. Distinctiveness refers to being recognizable to consumers as a source identifier. Nonfunctionality requires the design not be essential to the use or purpose of the product or service. Additionally, that it not affect the cost or quality of the product or service. Functional trade dress is not registerable even if it is distinctive.
A knowledgeable attorney should handle drafting applications considering the challenges and requirements. Our attorneys have experience in trade dress challenges. We help clients maximize their chances of trade dress registration to obtain the broadest protection possible.