What is Trade Dress?

Since identifying valuable intellectual property can create new assets for your business, it is important to become familiar with the many different kinds of IP and to learn how to protect them. Trademarks for example, can be registered with the U.S. Patent and Trademark Office (USPTO) to receive protection throughout the U.S.. This is true of trade dress as well. What exactly is trade dress? And, how can you protect it?

Defining Trade Dress

The USPTO glossary defines trade dress as, “a product’s design, product packaging, color, or other distinguishing nonfunctional element of appearance”. Often, trade dress is thought to include only product packaging but in reality, its meaning has expanded to include the overall image and appearance of a product or the totality of the elements. It can include features such as color, color combinations, shape, size, texture and graphics. Interior decoration or designs of restaurants and stores are also considered trade dress. Trade dress marks are used in connection with both goods and services.

What Does Not Qualify as Trade Dress

Slogans, words and some other things typically thought of as trademarks do not qualify as trade dress. In addition, if the trade dress is essential to the purpose or use of the article or if it affects the quality or cost of the article, that is, if the trade dress is functional, it cannot serve as a trademark.

How to Protect Trade Dress

In the U.S., trade dress is protectable through both common law and when it is registered with the USPTO. To register trade dress, it must be unique and distinctive and it must be absolutely nonfunctional. Trade dress owners can further protect their IP by giving notice of their trade dress claim in all of their marketing materials.

If you own a product or service that you feel qualifies as trade dress, I can help you determine whether it qualifies and even assist you in the registration process if you so desire. Feel free to contact me for further information.

 

Kelly G. Swartz is a patent attorney licensed to practice in front of the United States Patent and Trademark Office and in the state of Florida.  She limits her practice to intellectual property law including patent, trademark, copyright, and trade secrets.