Trade dress can be thought of as the visual appearance or “total image” of a product or service, and can include a product’s features—such as shape, configuration, texture, size, color, smell, graphic design or packaging—or service features—such as décor, architectural features, menu and layout. Trade dress protection is complementary to, and sometimes overlaps with, copyright protection and design patent protection, which also protect an object’s appearance.
Trade dress may be protected by filing a trademark application with a drawing depicting a single rendition of the mark; the applicant must indicate that the mark is three-dimensional. In order to protect some forms of trade dress, such as a product design, the owner must prove public recognition of the design as a trademark. This is known as “secondary meaning” or “acquired distinctiveness.” Product packaging requires that the applicant prove the trade dress is inherently distinctive or has secondary meaning.
Trade dress will not protect features that are primarily functional or utilitarian.
Generally, features that predominately relate to a product’s utility are deemed functional, as are aspects that are “essential to the use or purpose of the product” or that “affect the cost or quality of the product.” However, where multiple arrangements to perform the same functions exist, the features of a particular arrangement may be nonfunctional.
To find out more please access our IP Primer page.