Trade Dress Law

Trade dress is defined as a product’s total image or overall appearance and may include features such as size, shape, color or color combinations, texture, graphics or even certain sales techniques. Trade dress can be protected under both common law and through registration.

If the trade dress is unregistered, the basis for protection is section 43(a) of the Lanham Act, which provides protection for “any word, term, name, symbol, or device, or any combination thereof” used “on or in connection with any goods or services, or any container for goods.”

An unregistered trade dress is entitled to protection if it is distinctive, either inherently or through an acquired distinctiveness (or secondary meaning). If an unregistered trade dress is inherently distinctive, there is no need to prove that the dress has a secondary meaning. However, if the dress is descriptive, it is able to be protected upon a showing of secondary meaning. If it is generic, then it is not entitled to protection.

In addition to being distinctive, in order to be entitled to protection, the trade dress cannot be functional. In the trade dress context, to be functional, a feature must be one that is essential to the use or purpose of the article or that affects the cost or quality of the article. A design feature of a particular article is essential only if the feature is dictated by the function to be performed; a feature that merely accommodates a useful function is not enough.The fact that a design feature performs a function does not make it essential to the performance of that function; it is instead the absence of alternative constructions performing the same function that renders the feature functional.

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