Trade Dress

Trade dress law, which falls under trademark law, refers to elements that are used to identify or distinguish a product or a service. A product's trade dress may be its physical appearance, including its size, shape, texture, and design. Trade dress also may include the way a product is packaged or its distinctive color combination. The trade dress of a service may include the decor or environment in which the service is provided, such as the appearance of a store or restaurant. When determining infringement of trade dress, the Court considers the complete image of the product.

Trade dress protection extends to incidental, arbitrary or ornamental product features that are used only for the purpose of distinguishing or identifying the source of the product. If a product feature is functional, it is not protected under trade dress law. Unless the product feature is otherwise protected by a patent or a copyright, the functional product features may be copied freely by competitors in the marketplace.

Protection of trade dress serves one of the purposes of trademark law - preventing deception of or confusion to consumers. However, unlike many other types of intellectual property law, trade dress law does not reward creativity. Trade dress law originates from the Lanham Act, as does trademark law, and has the same scope of protections as trademark law. Typically trade dress receives legal protection by being distinctive and recognizable without any formal registration, although in some cases trade dress can be registered as a trademark.

A court may prohibit the trade dress of a product or service if it is too similar to the trade dress of a more established product or service. The protected trade dress must be distinctive and the competitor's trade dress use must be likely to cause consumer confusion.

Example: A competitor of Chevron used the same design and colors as Chevron on its lawn and garden product packaging. The court found that Chevron's distinctive red and yellow color scheme was its trade dress, and the competitor unfairly competed with Chevron by using those colors and the design, even though it prominently used a different trade name.

A further requirement of a protection under trade dress law is that it be nonfunctional. Only the design, shape or other aspect of the product or service that is used to promote or advertise the product or service is trade dress. The distinctive shape of a Mrs. Butterworth's syrup bottle is not necessary to contain the syrup, for example, but because it helps identify the product, it is protectable as trade dress.

Trade Dress Infringement

A claim for trade dress infringement must be brought in Federal court and the governing law is section 43(a) of the Lanham Act (15 USC § 1125(a)). Section 43(a) prohibits "false designation of origin, or any false description or representation, including words or symbols tending falsely to describe or represent same..." True to its main purpose protecting consumers, a plaintiff must show that element is used as a source identifier (used only for the purpose of distinguishing or identifying a product) and that consumer confusion is likely to demonstrate infringement of trade dress.

If you have questions regarding trade dress, or believe an element of your product is eligible for trade dress protections, contact a trademark attorney with experience in trade law to discuss your situation.

Questionnaire: Trademark, Trade Name or Service Mark Search

To read and printout a copy of the Questionnaire please link below.

Trademark, Trade Name or Service Mark Search

You can download a free copy of Adobe Acrobat Reader here.

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