If your business is developing products, you’re likely familiar with an aspect of trademark law called trade dress. Trade dress is an essential part of ensuring that your product’s look and feel won’t be copied or infringed on. Here are the main things you should know about what trade dress is, how it works, and how to use it to protect your products.

 

What Is a Trade Dress?

 

Trade dress is a trademark law that focuses on “inherently distinctive” features of products. In general, trade dress protects products that people can associate with your brand without seeing the label. For example, Coca-Cola’s glass bottle, Heinz’s squeeze bottle, and Adidas’s stripes are all features that are clearly identified as part of a brand and protected by trade dress.

 

It’s worth noting that trade dress only protects the aesthetic elements of products. These typically include shapes, colors, design, packaging, and even the way your product is displayed. Functional elements of products are not protected. Functional elements may include the shape, texture, size, and other features of a product if any of these elements are important to its use as a product. Trade dress can be protected through common law rights, or a claim for trade dress infringement may also be brought under the Lanham Act in a federal district court.

 

Secondary Meaning

 

Other than being inherently distinctive, trade dress can be distinctive through secondary meaning. To show secondary meaning, you need to prove that you can identify the source of the product through the primary significance of the product’s features. This involves looking at your advertising expenses and running consumer surveys that connect a product to its source.

 

For instance, a lawsuit involving Calvin Klein’s “Eternity” perfume ended in failing to assert a secondary meaning to the product. After running a consumer survey, only 21% of participants were able to identify the source of the bottle as the Eternity perfume.

 

Trade Dress Protection

 

Trade dress may be registered as a trademark with the United States Patent and Trademark Office (“USPTO”). However, trade dress is typically not registered. If you choose to go to the expense of registering your trade dress as a trademark, doing so is important if you want to fully protect it from infringement and dilution. Registering trade dress allows legal action to be taken against brands copying the registered products’ identifying features or tarnishing the reputation of the owner of the product.

 

From computer product designers to restaurant owners, there are plenty of businesses that could benefit from trade dress protection. If you’re spending money on developing a unique design to distinguish your brand, protecting it can provide a sense of security.

 

Trade Dress Registration

 

An application for trade dress registration may be made through the USPTO website. A description of the product must be provided along with proof of the trade dress’ function and non-functional elements. It must also be demonstrated why the trade dress is distinctive. If a design resembles a competitor’s trade dress, then this must also be disclosed. It is recommended that you work through an attorney who understands trade dress in order to file and prosecute the application for registration.

 

To prevent infringement and dilution, it’s recommended that trade dress protection be sought as soon as possible. That said, some companies choose to wait due to issues such as the likeliness of confusion between different brands.