Trade Dress Basics

❔What is trade dress:

Trade dress is a product or service’s overall commercial image (or the “look and feel” of the product or service or its packaging). It can include the design or configuration of a product or the packaging of products. It can consist of or include elements like size, shape, color, texture, patterns, and other visual elements.

Some examples of well-known trade dress include:

• The shape of the Coca-Cola® bottle
• The red sealing wax on a bottle of Makers Mark®
• The red tab on Levi’s® jeans
• The configuration of an Apple® store
• The seven-slot grille on Jeep® brand vehicles
• The look and feel of the adidas® Stan Smith® shoes

❔When is trade dress protectable:

Trade dress can be protected, just like trademarks, if the trade dress meets the necessary legal requirements.

First, it must be distinctive.

The trade must either be inherently distinctive or have acquired distinctiveness (i.e., secondary meaning) to be distinctive.

Inherent distinctiveness: Product design trade dress cannot be inherently distinctive, but product packaging trade dress can. To determine whether the latter is inherently distinctive, there are a variety of factors to consider, including whether the trade dress is (1) a common basic shape or design, (2) unique or unusual in the relevant field, (3) a mere refinement of a commonly-adopted and well-known form of ornamentation, and (4) capable of creating a commercial impression absent accompanying words. Seabrook Foods, Inc. v. Bar-Well Foods, Ltd., 568 F.2d 1342, 1344 (C.C.P.A. 1977); see also Trademark Manual of Examining Procedure § 1202.02(b)(II). Essentially, the trade dress must be uncommon and memorable enough that it inherently serves primarily to designate the origin of the product or services and conceptually separate from the product or services.

Acquired distinctiveness (i.e., secondary meaning): A trade dress has acquired secondary meaning when the product design or packaging primarily identifies the source of the product or service in the minds of consumers rather than the product or service itself. Secondary meaning is acquired via exclusive long-term proper use of your trade dress, relevant sales and a strong customer base, and effective marketing, advertising, and promotion.

Second, it cannot be functional.

As a general matter, trade dress is functional (and therefore not protectable) if any of the claimed features of the trade dress—e.g., the design of the product or the relevant visual elements—are (a) essential for using the product or the product’s purpose or (b) impact the cost or quality of the product such that preventing others from using it would hinder competition.

❔When to consider trade dress protection:

The decision to protect trade dress is strategic. If the visual elements of your product or its packaging significantly contribute to its success and consumers can unmistakably associate those elements with your brand, it’s time to consider legal protection. After all, protecting your unique visual identity is as crucial as safeguarding your brand name.

Want help determining whether you have protectable trade dress or developing a strategy for protecting that trade dress? That’s where we come in! Our attorneys can help you. Reach out today!