Trade dress is generally defined as the “total image” of a product. When a customer walks into a store and sees shelves of nearly identical products, “trade dress” is what distinguishes one product from another. Trade dress includes the size, shape and color of the product and its packaging. In another words, “trade dress” allows customers to pick out their favorite brands or distinguish brands. For trade dress to be protectable it must not be a functional part of the product and must distinguish one brand from another in the eyes of consumers.
Originally, trade dress was limited to product packaging (i.e. “dressing”). Now, however, the law of trade dress has been expanded to include the performing style of a professional wrestler, restaurant décor and even a restaurant’s menu.
Can Trade Dress be federally registered?
Yes. Trade dress which is inherently distinctive, such as an arbitrarily design on packaging are typically entitled to federal trademark registration. Trade dress which is not as arbitrary, such as color, need a showing of “secondary meaning”, that is that consumers in the marketplace recognize that particular color as a source identifier.
When is trade dress not protectable?
Trade dress is not protectable when it is functional. For example, buttons on a device are not protectable as trade dress, while a unique design on those buttons would be. Functional portions of a product are protected by utility patents, not trademark law. Allowing a competitor to protect a product’s function would allow the equivalent of utility patent protection which never expired.