What is Trade Dress and Why Does It Matter?

You are probably familiar with the importance of having a distinctive and recognizable brand name, logo, slogan, or symbol that identifies your products or services in the market. These are examples of trademarks, which are a form of intellectual property that protect the goodwill and reputation of your business. But did you know that trademarks can also cover the visual appearance of your products or services, such as the design, shape, color, packaging, or even the decor of your store or restaurant? This is known as trade dress, and it can be a valuable asset for your business as well.
a row of Coca-Cola bottles showing the progression of the bottle design through the years

You are probably familiar with the importance of having a distinctive and recognizable brand name, logo, slogan, or symbol that identifies your products or services in the market. These are examples of trademarks, which are a form of intellectual property that protect the goodwill and reputation of your business. But did you know that trademarks can also cover the visual appearance of your products or services, such as the design, shape, color, packaging, or even the decor of your store or restaurant? This is known as trade dress, and it can be a valuable asset for your business as well.

Trade dress is the commercial look and feel of a product or service that signifies the source of the product or service to consumers. Trade dress can include various elements, such as:

  • The design and shape of materials used to package a product, such as bottles, boxes, bags, etc.
  • The configuration and arrangement of features or components of a product, such as buttons, knobs, screens, etc.
  • The color or combination of colors used on a product or its packaging, such as red for Coca-Cola or Tiffany blue for Tiffany & Co.
  • The graphics, logos, fonts, or labels used on a product or its packaging, such as the Nike swoosh or the Apple logo
  • The decor, architecture, layout, or ambiance of a service establishment, such as the Hard Rock Cafe or Starbucks

Trade dress can be protected under trademark law if it serves to identify and distinguish the source of the product or service and is not purely functional. Trade dress can be registered with the U.S. Patent and Trademark Office (USPTO) as a trademark, or it can be protected without registration under common law. To register trade dress as a trademark, you need to show that it is either inherently distinctive (meaning that it is unique and memorable) or that it has acquired secondary meaning (meaning that consumers associate it with your business). To protect trade dress without registration, you need to show that it is distinctive and non-functional and that there is a likelihood of confusion among consumers if another business uses a similar trade dress. Much like regular trademarks, however, common law (or non-registered) trade dress does not provide robust or comprehensive protection; and it only protects your trade dress in your geographic area.

The benefits of protecting your trade dress are similar to those of protecting your trademarks. Trade dress can help you to:

  • Build and maintain your brand identity and reputation in the market
  • Attract and retain loyal customers who recognize and prefer your products or services
  • Prevent competitors from copying or imitating your products or services
  • Enforce your rights against infringers who may damage your goodwill or profits

Some examples of famous trade dress cases include:

  • Apple Inc. v. Samsung Electronics Co., Ltd., where Apple sued Samsung for infringing its trade dress on the design and appearance of its iPhone and iPad devices
  • Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc., where Louboutin sued YSL for infringing its trade dress on the red sole of its shoes
  • Taco Cabana International Inc. v. Two Pesos Inc., where Taco Cabana sued Two Pesos for infringing its trade dress on the decor and ambiance of its Mexican restaurants

As you can see, trade dress is an important aspect of trademark law that can protect the visual appearance of your products or services. If you have a distinctive and non-functional trade dress that identifies your business in the market, you should consider registering it as a trademark or protecting it under common law. If you need any assistance with trade dress or trademark issues, please contact us today. We are a professional trademark law firm with extensive experience and knowledge in this field. We look forward to hearing from you soon.