Do you know the difference between a trademark and trade dress? Do you have a distinctive product or packaging that deserves legal protection? Learn what you should do to protect your trade dress rights from would-be infringers.
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by River Braun, J.D.
River Braun was a business attorney in California for over a decade, assisting entrepreneurs on issues such as incorp...
Updated on: February 7, 2023 · 3 min read
Ever wrapped your hands around a Coke bottle? Or felt a bit of nostalgia walking into your favorite greasy spoon restaurant? Then you understand the concept of trade dress. This little-known branch of intellectual property is no less protected by the law than its more commonly thought of cousin, the trademark. Protecting your trade dress from infringement is critical to your business' bottom line.
Trade dress refers to the look and feel of a product or its packaging. Some examples include:
According to the Lanham Act, the body of law that protects intellectual property rights, trade dress protects "the total image of a product including features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques."
While trade dress law protects the overall look and feel of a product or its packaging, trademark law protects logos, words, symbols, taglines, or names associated with a product or service.
Apple, for example, has a registered trademark in their logo. They also have trade dress protection of their store design and layout. The goal in registering these intellectual property assets is to protect the company from infringers who would use their logo and store design to pass off counterfeit Apple products.
You may receive protection under the Lanham Act, regardless of whether your trade dress is registered, if it meets certain requirements. These include having features that are distinctive, nonfunctional, and that have obtained secondary meaning. Secondary meaning simply means that the public has come to recognize a particular manner of trade dress as coming from you.
If someone else attempts to sell a product with similar trade dress, you may bring a case against them for infringement. A judge will use an eight-factor test, also known as the likelihood of confusion test, to determine whether infringement is present. This test includes the following questions:
Trade dress infringement cases may be more common than you think. Some recent examples include:
Though legal protections exist regardless of whether your intellectual property is registered, there are benefits to registration, including the ability to sue in federal court and the confiscation of counterfeit goods at borders. It also places would-be infringers on notice that your trade dress is protected.
Trade dress may be protected under a design patent or a trademark application. Because it is easier and less expensive, most people opt to file an application through the trademark side of the United States Patent and Trademark Office (USPTO). To file for trade dress protection, follow these simple steps:
Trade dress is an important part of your company's intellectual property portfolio. Consult an online service provider to start protecting yours today.
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