What is Trade Dress?
Trade dress generally refers to characteristics of the visual appearance of a product or its packaging or display that signifies the source of that product to consumers. Like trademarks, Trade Dress is a form of intellectual property and is legally protected under the Lanham Act. Trade Dress protects against packaging or appearance of products designed to imitate other products such as the design of a magazine cover or a chain restaurant façade. Courts are even beginning to allow trade dress protection for the overall look and feel of a website page.
The Lanham Act allows the owner of a trade dress who has not registered the trade dress with United States Patent and Trademark Office (USPTO to sue an infringer who copies the trade dress) under federal common law protection for trade dress. Nevertheless, trade dress may be registered with the USPTO. Registration with the USPTO has several advantages. The registrant gains constructive use and constructive notice which prevents others from using or registering the trade dress. A registrant achieves incontestable status of the trade dress after five years which prevents others from challenging that registration.
A trade dress registration requires that the trade dress be other than “functional”, meaning the material that constitutes the trade dress must not serve a utility or function outside of creating recognition in a consumer’s mind. What is considered functional depends on the specific product or thing to be protected. Trade dress, in order to achieve registration, must be distinctive for the product as the identifying source of the product.
Trade dress is oftentimes an important supplement to a trademark. If you would like assistance in registering or evaluating whether you have a protectable trade dress or trademark which may benefit from registration with the USPTO, contact one of our attorneys for an evaluation.
Trade Dress Summary;
- Trade Dress generally refers to those characteristics of the visual appearance of a product or its packaging or display that signifies the source of that product to consumers;
- For trademark registration or trade dress registration, must file with the USPTO;
- Intellectual property legally protectable under the Lanham Act;
- For creating consumer recognition only, Trade Dress registration cannot be merely functional; and
- Often supplemental to a trademark.