When customers recognize the look and feel of your product (or service) and associate it with you, you may have a protectable Trade Dress, which can be a powerful trademark.
By Michael Kondoudis, Small Business Trademark Attorney
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This is our EASY guide to Trade Dress.
Brand recognition is important. Businesses need their customers to be able to easily identify their products and services. Using distinctive trademarks (names + logos) is one way to build recognition. Another way is to use trade dress.
Trade dress is often overlooked, but it can be a powerful tool to help you distinguish your products and services from the competition.
In this blog post, we’ll dive into the ins and outs of trade dress and explain why it’s crucial for business owners to understand this trademark law concept.
Let’s jump in!
CONTENTS
Part I: What is Trade Dress?
Part II: What Qualifies as Trade Dress?
Part III: Requirements for Trade Dress
Part IV: Examples of Trade Dress
Part V: Condensed Summary of Trade Dress
Part I: What is Trade Dress?
Part II: What Qualifies as Trade Dress?
Part III: Requirements for Trade Dress
Part IV: Examples of Trade Dress
Part V: Condensed Summary of Trade Dress
I. ABOUT TRADE DRESS
What is Trade Dress?
Trade dress refers to the overall appearance or design of a product or service that distinguishes it from others in the market. It encompasses a variety of elements, including packaging and labeling, product configuration, flavor, color, and even the design of a restaurant or retail store. Essentially, trade dress helps identify a brand and creates a unique image in the minds of consumers. By protecting these elements, companies can prevent others from unfairly capitalizing on their intellectual property and ensure that their brand and reputation remain intact.
Trade dress helps customers know which company is the source of a product or service from the look and feel rather than a name or logo.
The features and characteristics of a product or its packaging, such as design, shape, colors, and patterns, can be trade dress. The ambiance and décor in which a service is rendered can be trade dress. These elements combine to form a distinctive look or feel that distinguishes a product and represents a brand.
Companies can register their trade dress with the US Patent and Trademark Office to obtain legal protection and prevent others from using confusingly similar trade dress in the marketplace.
Trade dress is a type of trademark protection.
Definition of Trade Dress
Trade dress refers to the visual appearance and overall image of a product or service, including its packaging, design, graphics, colors, shape, and other visual elements. It is a type of intellectual property that is protected under trademark law and is used to identify and distinguish the product or service from those of other companies. The purpose of trade dress is to create a unique and recognizable brand identity that helps consumers associate the product or service with a particular company or source.
Trade dress is a legal protection for the way a product looks and feels or the ambiance or décor in which a service is rendered – when it distinguishes the product or service from the competition.
The Purpose of Trade Dress
Trade dress identifies and distinguishes the source of a product or service through “look and feel” rather than trademarks (names + logos).
Trade dress prevents competitors from copying a company’s unique branding elements beyond names and logos.
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How Is Trade Dress Different From Trademarks?
Trade dress protects the look and feel of a product or service, while trademarks protect the names, words, logos, and phrases used to brand a product or service. The difference between trade dress and trademarks is what they protect.
The main difference between trade dress and trademarks is that trade dress protects the overall look and feel of your product, while trademarks protect specific words, logos, or other symbols associated with your brand.
Trade dress and trademarks both protect brands, just in different ways.
II. WHAT QUALIFIES AS TRADE DRESS
What Can Be Trade Dress?
Features that contribute to the commercial look and feel of a product, its packaging, or a service can be trade dress, including:
1. Shape: The shape of your product or packaging can significantly impact its overall appearance and make it more distinguishable.
2. Color: A distinct color scheme can help your product stand out on store shelves and create a lasting impression on your customers.
3. Design: A unique and eye-catching design can enhance your product’s appeal and contribute to its recognizability.
4. Size: Playing with different product or packaging sizes can set your offering apart from other similar products in the market.
5. Configuration: How the different components of your product are arranged can contribute to its distinctive visual appearance.
6. Packaging: Creative and unique packaging can catch consumers’ attention and help reinforce your brand identity.
7. Decor: Distinctive décor that results in an atmosphere that customers associate with a business or service and help reinforce a brand identity. Example: The atmosphere of an Apple® store or a Taco Bell® restaurant.
What Is Not Trade Dress?
Products and Services
Trade dress does not protect a product or service. Trade dress protects the distinctive appearance of the product or service that represents your brand.
Functional Elements
The trade dress cannot perform any function that is essential to the use of a product or to render a service. Trade dress protects the aesthetic aspects that set a product or service apart from the competition. The trade dress must be nonfunctional.
Common Elements
Trade dress must be distinctive so that it identifies a brand. Consumers do not recognize common elements (those shared between competitors in an industry) as representing a brand. Consumers see the trade dress and automatically associate it with a particular company or product.
III. REQUIREMENTS FOR TRADE DRESS
Trade Dress Requirements
Trade dress is protectable when it is (1) non-functional and (2) distinctive. Essentially, trade dress should be seen as a way to establish a brand identity or image, rather than as a functional aspect of a product or service.
Non-Functional
This means that the design or shape of a product cannot serve a practical, functional, or utilitarian purpose. Instead, it must be primarily for aesthetic or decorative purposes.
Distinctive
This means that the design, shape or décor is not ordinary. Instead, it must be recognizable by consumers as a reflection of a company brand and as an indication that a product or service comes from a particular source.
To be protectable, trade dress must be (1) non-functional and (2) distinctive.
IV. EXAMPLES OF TRADE DRESS
Trade Dress Examples
Some examples of trade dress are product packaging, product design configurations, product color, a restaurant’s décor, and the design of a retail store.
Trade Dress Examples In The Marketplace
• The distinctive red and white label on a bottle of Coca-Cola (product packaging)
• The unique shape and design of a Porsche 911 sports car (product design configuration)
• The distinctive pink color or Owens Corning fiberglass insulation (product color)
• The trade dress of a retail store, such as the distinctive decor, signage, and layout of a Starbucks coffee shop (restaurant decor)
• The unique design and layout of an Apple Store, including the glass storefront and minimalist aesthetic (store design)
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Examples of Trade Dress
The following examples of protected trade dress:
The Coca-Cola Curvy Bottle
The Coca-Cola bottle has a distinctive and recognizable contour shape.
Apple Stores
Apple stores are known for their class storefronts and minimalist aethetic, both of which reflect the Apple brand.
Hershey Chocolate Bars
Hershey’s chocolate bars are packaged in foil wrappers with brown outer wrappings.
John Deere Tractors
John Deere tractors are painted in a distinctive and recognizable green and yellow combination.
Chevrolet Corvettes
The unique shape and design of Chevrolet’s Corvette sports car is both distinctive and recognizable.
What Is The Most Famous Trade Dress?
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, to be exact. The history of the Coca-Cola bottle dates back even further, to 1916, when it was first used. This trademark’s design is easily recognizable, and it has become an incredible symbol of the brand’s identity, cementing its place in pop culture and history.
V. CONDENSED SUMMARY
Trade dress is a type of trademark that can protect the overall appearance of a product or company. It can include features like color, shape, design, packaging, and more. The purpose of trade dress is to help consumers distinguish one product from another and to identify the source of the product. In order for trade dress to be eligible for protection, it must be nonfunctional and have acquired a secondary meaning among consumers. Keep reading to learn more about trade dress and how it can be used to protect your business.
Trade dress is a type of trademark that can be used to protect the overall appearance of a product or company. It can include features like color, shape, design, packaging, and more. The purpose of trade dress is to help consumers distinguish one product from another and to identify the source of the product. In order for trade dress to be eligible for protection, it must be nonfunctional and have acquired a secondary meaning among consumers.
Like other trademarks, trade dress is protected by state and federal law. trade dress can also be registered with the US Patent and Trademark Office (USPTO). Registering your trade dress gives you additional legal rights and makes it easier to enforce your trademark rights if someone infringes on them. If you have not yet registered your trade dress, you can still assert common law rights in it. However, registering your trademark makes it easier to prove infringement in court and can give you greater damages if you win your case.
If someone infringes on your registered or unregistered trade dress rights, you may be able to sue them for trademark infringement. To win an infringement lawsuit, you will need to show that (1) you have valid trade dress rights in the product or service; (2) the defendant’s use of the trade dress is likely to cause consumer confusion; and (3) you have been harmed as a result of the infringement. If you are successful in your lawsuit, you may be entitled to damages including profits lost due to the infringement, punitive damages, attorneys’ fees, and an injunction against further infringement.
VI. DO YOU NEED A LAWYER?
Do You Have to Use a Trademark Attorney to Protect Trade Dress?
No, but the U.S. Patent and Trademark Office strongly recommends that all applicants work with a trademark attorney.
Why Should You Work With a Trademark Attorney?
Filing a trademark application with the USPTO (U.S. Patent and Trademark Office) starts a federal legal process that can get complicated, expensive and confusing. Working with a trademark attorney can make the process go faster, smoother, and result in more protection. Remember, the trademarking process is much more than just filling out online forms (that’s the easiest part of the process). The USPTO will only grant your application after meeting all of its many legal and procedural requirements.
Also, studies show that working with a trademark attorney can increase your chances of successfully trademarking your brand by over 50%.
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For more than twenty years, Michael Kondoudis has been the go-to trademarking expert for businesses of all shapes and sizes. Michael is a USPTO-licensed trademark and patent attorney, educator, speaker, and author of the Amazon best-seller: Going From Business Owner to Brand Owner. He is also an authority trusted by national news media on major trademark stories.
Fun Facts: Michael is a member of the Bar of the U.S. Supreme Court and an actual rocket scientist (B.S. Astronomy and Astrophysics, Indiana University 1994).