Trade Dress Protection

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 What is Trade Dress?

Trademark laws protect the producers of goods and consumers. These laws prevent a company from using the name or logo of another company to describe their own goods in a way that may cause consumer confusion

Consumer confusion harms consumers because it can cause a consumer to purchase one product when they believe they are purchasing another product. In addition, it harms companies because the imposter product takes away sales from the original company. If that impostor product is inferior, it may harm the original company’s reputation.

Trade dress is a distinctive, non-functioning feature that serves to distinguish a manufacturer’s or merchant’s goods or services from those of another manufacturer or merchant. The trade dress of a product may include things such as the color of the packaging or the configuration of the goods, among other aspects. Trade dress examples may include the packaging of Wonder Bread and the Tiffany blue of the Tiffany’s jewelry company. 

Company names and logos can be protected under trademark law. Trade dress can also be protected under the same laws.

Trade dress includes all of the elements that are used to promote a service or product. The trade dress of a service may include the environment in which a service is provided or the decor of the place, such as the distinctive decor of a specific restaurant chain. The trade dress of a product can include the packaging, displays of the product, or its configuration.

Trade dress includes the packaging, configuration, and appearance of the product. It includes things that are often used by the consumer to indicate the source of the goods. For example, the majority of consumers can identify the unique shape of a Coke bottle. 

Since there are no other companies that use that particular shape for their bottles, the majority of consumers are able to identify the Coke bottle even without seeing the label. The shape of the Coke bottle is an example of trade dress providing an indication of a product’s source.

If the product’s trade dress is unique and that uniqueness is what led consumers to associate the trade dress with a specific product, that trade dress is protected by trademark law. Trade dress laws provide that no other manufacturer would be permitted to use a similar trade dress if it would cause consumer confusion regarding the source of the goods.

Therefore, if a rival soft drink manufacturer begins putting its product in a bottle with a similar shape and appearance to the Coke bottle, they may be held liable for trademark infringement if Coke can demonstrate that the imitation is likely to cause consumer confusion. However, if the company can demonstrate that a consumer can easily differentiate between the two products, even though the bottles are similar, they will not be held liable for trademark infringement.

Can You Claim Trade Dress Protection?

A company or manufacturer can claim trade dress protection if their trade dress is distinctive and indicates the source of the product. They can also claim trade dress protection if the public mistakenly associates another product with theirs because of similar packaging.

The trade dress of a product can be protected if it can be shown that the average consumer would likely be confused as to the origin of the product if the other product was permitted to appear in a similar dress. The product packaging, or trade dress, must be inherently distinctive.

In order for a trade dress to be inherently distinctive, some courts have held that it must be conceptually separate from the actual product. The United States Supreme Court has held that the decor of a restaurant could be considered inherently distinctive because it used a specific decor based upon neon stripes, distinctive umbrellas and a buffet style of service.

A functional aspect of the product is not eligible for trade dress protection if it was not created specifically to promote that product or service. For example, a large number of liquor bottles use bottles with a unique shape that do not serve any other purpose than to identify the product.

What is the Difference between Trade Dress and Trademark?

A trade dress is considered a type of trademark. A trademark is used to distinguish products and their manufacturers from one another. Trademarks may include words, phrases, logos, or other symbols that are used to identify the product, the product’s source, and its merchant or manufacturer.

Before an individual or business registers their trademark, they should run a trademark search to determine whether or not another business or entity is already using the name. There are many types of trademarks, including:

  • A service mark, which promotes a particular type of services rather than a product;  
  • Trade dress, or the distinctive packaging of a product; 
  • A collective mark, or a symbol, word, or phrase used to identify an organization, group, or association as well as the services, members, or products of the group; and
  • A certification mark, or a symbol or name used to guarantee the quality of another’s product or service.

The trade dress of a product can include features. In contrast, a trademark typically includes only a set of words or a logo. The unique features of trade dress may include:

  • Size;
  • Shape;
  • Color or color combinations; and
  • Graphics.

Trade dress rights protect the unique packaging of products. They are designed to protect the product from imitation.

Can I Register My Trade Dress?

Yes, a trade dress may be registered with the United States Patent and Trademark Office (USPTO) in the same manner as a trademark. It may be difficult to register a trade dress, however, because in some cases it may be difficult to express a trade dress in drawings or words.

It is important to note that in recent years, trade dress has been applied to websites and phone applications, since they often have a particular look and feel. Trade dress would refer to the colors, the design, the layout, and things that influence the overall feel. 

The writing or content on the website may be copyrighted, and therefore, would not be protected under trade dress. Similarly, the name or logo of the website would be protected under trademark laws. However, if a website has a distinctive design, such as the website of a well-known blogger that has a distinctive color scheme and layout, that may be protected as a trade dress.

Why Protect Your Trade Dress?

There are several benefits to protecting a trade dress. Registering the trade dress prevents another company from using similar product packaging or dressing. This will prevent consumers from confusing the product with the product of another producer.

Should I Consult a Lawyer about My Trade Dress Issue?

Yes, it is essential to have the assistance of an experienced trademark attorney for any trade dress issues you may have. Trade dress is a complex and less-defined area of law than trademarks. 

An experienced attorney will have the knowledge to help you protect your trade dress. Your attorney can also represent you in court if a trade dress infringement lawsuit becomes necessary. Protecting your trade dress means protecting your business, your profits, and your livelihood.

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