Imagine a bright red sports car with yellow racing stripes. Or, picture a chocolate bar wrapped in a distinctive gold wrapper. These are just two examples of trade dress, a legal concept that protects the visual appearance of a product or service. Trade dress goes beyond trademarks to encompass the overall look and feel that identifies a brand in the marketplace.

Understanding Trade Dress

Dress falls under intellectual property law, alongside trademarks, copyrights, and patents. Here’s a breakdown of what it is and how it functions:

Protecting the overall look and feel:

Unlike trademarks that focus on specific words, symbols, or logos, dress safeguards the complete visual presentation of a product or service, including elements like packaging, design, color schemes, and even shapes.

Building brand recognition:

A distinctive dress helps consumers easily identify a particular brand. Think of the Coca-Cola bottle or the Tiffany blue box. These unique design elements instantly tell consumers about the brand behind the product.

Preventing consumer confusion:

Dress laws exist to prevent companies from copying the look and feel of established brands, which could mislead consumers.

What Can Be Trade Dress?

Dress can encompass a variety of visual elements that contribute to a brand’s identity. Here are some common examples:

• Product packaging: The design and shape of a product’s packaging can be protected as dress. The aforementioned chocolate bar example highlights this concept.

• Product design: The unique shape or configuration of a product itself can be trademarked. For instance, the design of a particular type of screwdriver might be protected dress.

• Color schemes: Distinctive color combinations associated with a brand can be protected dress. Taxicabs and their yellow color scheme are a common example.

• Dress can also include: Store layouts, website design elements, and even sounds associated with a brand (think of the MGM lion’s roar).

Requirements for Trade Dress Protection

Not all visual elements qualify for dress protection. Here are some general requirements:

• Distinctive: The look and feel must be distinctive enough to identify a particular brand. Generic shapes or colors wouldn’t qualify.

• Non-functional: The design element cannot be solely functional. For instance, the shape of a bottle might be functional for holding liquid and wouldn’t qualify. However, a uniquely designed bottle cap could be protected dress.

• Acquired distinctiveness: In some cases, even elements that weren’t inherently distinctive can acquire distinctiveness over time through extensive brand association. Think of the Tiffany blue color, which wasn’t always unique to the brand but has become so over time.

How to Protect Trade Dress

Unlike patents or copyrights, dress isn’t automatically protected upon creation. Here are some ways to strengthen your dress rights:

• Building brand recognition: The more consumers associate the look and feel with your brand, the stronger your dress rights become. Marketing and advertising efforts play a role here.

• Federal registration (optional): While not mandatory, registering your dress with the United States Patent and Trademark Office (USPTO) can provide additional legal benefits and create a public record of your ownership.

• Using TM symbol: Displaying the TM (Trademark) symbol alongside your dress can deter potential copiers.

Dress is a valuable legal tool for businesses to protect their brand identity. By understanding what dress is, what can be protected, and how to safeguard your rights, businesses can ensure consumers easily recognize their unique products and services in the marketplace.