Traditionally, trade dress was limited to the overall appearance of labels, wrappers, and containers used in packaging a product. However, over a period of years, the traditional definition expanded beyond packages and containers to include the total look of a product. Today, the total look includes the packaging, as well as the design, shape, size, graphics, color, and texture of the product.
Examples of trade dress include: the cover of a PEOPLE magazine; the appearance, menus, and decor of a restaurant; the “G” shape of the frame of a Gucci watch; Goldfish’s fish-shaped snack cracker; and Maker’s Mark Distillery’s use of red dripping wax on their bottle.
A product’s trade dress creates a visual image presented to customers and helps to indicate the source of the product.Trade dress is a protectable intellectual property interest.
Trade dress protection is intended to shield consumers from packaging or appearance of products that are designed to imitate other products. In other words, trade dress protection helps to prevent a consumer from buying one product under the belief that it is another.
Trade dress may be registered with the United States Patent and Trademark Office, although registration is not required for legal protection.
Infringement of trade dress is grounds for a civil action, and a plaintiff asserting a claim for infringement must plead and prove the below three elements.
1. The plaintiff owns a protectable trade dress in a clearly articulated design or combination of elements that is either inherently distinctive or has acquired distinctiveness through secondary meaning, i.e., buyer association of symbol with source.
2. The accused mark or trade dress creates a likelihood of confusion as to source, or as to sponsorship, affiliation or connection. This element does not rest on whether the defendant’s package or trade dress is identical to plaintiff’s; rather, it is the similarity of the total, overall impression that is to be tested.
3. If the trade dress is not registered, the plaintiff must prove that the trade dress is not functional. If the trade dress is registered, the registration is presumptive evidence of non-functionality, and the burden of showing functionality is on the defendant.
The third prong is interesting, and to satisfy it, the trade dress seeking protection must not be “functional.” That is, the configuration of shapes, designs, colors, or materials that make up the trade dress in question may not serve a purpose or function outside of creating recognition in the consumer’s mind.
If the above three elements for trade dress infringement are met, two remedies are available: injunctive relief (a court order restraining one party from infringing on another’s trade dress) and/or money damages (compensation for losses suffered by the injured party).
If you have questions or concerns that your trade dress may have been infringed, it is important to seek the advice of an attorney as soon as possible to protect your rights.