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Trade Dress Your Product

coke bottleIn 1916, a glass bottle manufacturing company in Terre Haute, Indiana won a bottle design contest.  Their contour shaped bottle is today recognized worldwide by billions of consumers and is one of the most recognizable examples of trade dress protection.   The glass bottle company was The Root Glass Company.  The bottle they designed was for Coca-Cola. Coca-Cola wanted a bottle design that customers could recognize even in the dark and easily distinguish it from imitators.  The contour bottle shape was identifiable and also attractive.  This origin bottle design is still used by Coca-Cola today for marketing their product.

Coca-Cola paved the way forward for trade dress protection.  Trade dress is an unregistered product trademark that protects the packaging, color, and shape of a product. In 1946, the Lanham Act was passed to protect a company’s product trade dress from being infringed upon.  If you have a product with a distinct shape or packaging, then this can be considered trade dress or if you are operating several restaurants with the same theme, then this can also be considered your trade dress.

Why should you trademark a trade dress?

You do not need to register a trade dress with the Patent Trademark Office to be legally protected.  However, there are advantages to having your trade dress registered.    Having a Principal Register trademark, gives you the right to prevent others from using or registering your trade dress, without of course them spending quite a bit of time and money to contest your registration.  The trademark also gives you incontestable status after five years, eliminating other parties from challenging you once time period has lapsed.

How do you get a trade dress registered?

In order to get a trade dress registered as a trademark at the Patent Trademark Office, you must prove that your trade dress is unique, original, and well perceived by consumers as the source of origin.  Can the public identify your product by the trade dress?

There two legal requirements to gain registration.  The trade dress must not be functional.  For example, the color yellow in a sneaker may not be functional, but in a yield sign it conveys slow down.  The other requirement is that the trade dress must be distinctive.  Coca-cola’s contour shaped glass bottle was distinctive from other glass bottle designs.  Since Coca-Cola’s bottle was distinctive it therefore met the requirement needed be registered for a trademark.

Cola-Coca has opted out of registering their trade dress. Having a bottle design recognized by billions worldwide, has given the company enough proof as being the origin source of origin.  If infringement of their bottle design did ever arise, they would be legally protected.

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