Trade Dress: What It Is and How to Protect Yours
An overview of what New Jersey and federal trademark laws say
By Super Lawyers staff | Last updated on January 27, 2023Use these links to jump to different sections:
Branding matters. If you work in a consumer industry, you undoubtedly have an appreciation for the importance your business’ reputation. Consumers should be able to know that they are getting legitimate products from your company, and counterfeit or knock-off products pose a threat. Fortunately, under United States intellectual property law—more specifically, through a type of trademark protection called trade dress—businesses have important legal rights and some valuable legal tools available to help them fight back against other firms attempting consumer confusion by copying product designs or packaging. “Not many people understand the differences between trademark and trade dress, and the variations in the strength of potential marks, which can be complicated,” says Nancy A. Del Pizzo, an intellectual property attorney at Rivkin Radler in Hackensack. “It’s why you probably want to talk to an attorney—especially one who knows what they’re doing.”What is Trade Dress?
The term ‘trade dress’ refers to the characteristics and visual appearance of a product or its packaging that act as a source signifier. As noted in the Trademark Manual of Examining Procedure (TMEP), the term is generally defined as the “overall appearance” of a product/packaging. It can include everything from features, sizes, colors, combinations, graphics, textures, and other unique design elements. Much like trademark law, Del Pizzo says, trade dress “can be registered; you can have common law rights; you can have federal rights; basically, trademarks are typically words and design, while trade dress relates to image and overall appearance.” Under United States law, there are two key legal requirements for companies seeking trade dress protection for overall appearance. First, the elements in question must have a distinctiveness. Relevant consumers must view the design in question as a source signifier. Second, companies cannot seek trade dress protection for purely functional products/packaging. Trade dress protection is reserved for non-functional elements only. The product/packaging in question can certainly have functional aspects, but trade dress protection itself is reserved for only the design elements that signify the source. Trade dress can perhaps be best understood through one of its most famous examples of trade dress: the Coke bottle. Coca-Cola obtained trade dress protection for its classic hourglass bottle shape. Of course, this bottle serves functional purposes—and Coca-Cola cannot stop other companies from selling products from glass bottles—but the inherent distinctiveness of the design of the bottle has become such a source signifier for consumers that many people associate it with the company. As such, it has intellectual property rights to that style of packaging. For companies involved in consumer goods, protectable trade dress is crucial. As such, businesses need to take proactive steps to protect their intellectual property rights. Some common legal strategies used to protect trade dress rights include:- Filing a trademark registration for a unique design
- Continuously reviewing products on the market to ensure that violations are quickly identified
- Taking immediate action against any company/business creating products or using packing that will confuse consumers
What do I do next?
Enter your location below to get connected with a qualified attorney today.Related topics
At Super Lawyers, we know legal issues can be stressful and confusing. We are committed to providing you with reliable legal information in a way that is easy to understand. Our legal resources pages are created by experienced attorney writers and writers that specialize in legal content in consultation with the top attorneys that make our Super Lawyers lists. We strive to present information in a neutral and unbiased way, so that you can make informed decisions based on your legal circumstances.
Attorney directory searches
Helpful links
Find top lawyers with confidence
The Super Lawyers patented selection process is peer influenced and research driven, selecting the top 5% of attorneys to the Super Lawyers lists each year. We know lawyers and make it easy to connect with them.
Find a lawyer near you