What Is Trade Dress?

The term ‘Trade Dress’ refers to the overall aesthetic, visual design of your product or even your brand as a whole.  This is all about a unique look that consumers associate exclusively with your brand or product and no else’s.

Trade Dress can include one or more of the following:
  1. Colors or color combinations
  2. Visual designs (including patterns)
  3. Unique shapes
  4. Layouts
  5. Packaging
  6. Even the Overall ‘Look and Feel’
How Can I Protect My Trade Dress?

The best way to protect your Trade Dress is to register it with the USPTO as a Trademark under the Lanham Act.  There are many benefits to doing so.  The real key to protecting Trade Dress is that it has to be:

  1. Distinctive (truly unique to only you); and
  2. Non-Functional (it cannot involve any useful components that give your design any utility)

For example:  Picture a classic Coca-Cola bottle with its red and white label.  Coca-Cola could have been made its bottle to be of any shape; the label could have been of any color.  Different choices here would have made no functional difference to the product (so, non-functional).  Instead, Coca-Cola chose its bottle shape and colors for aesthetic reasons and then invested heavily, over time, into making them iconic and instantly recognizable (and thus distinctive).

How Can I Use My Trade Dress Registration To My Advantage?

You can file a Trademark application to protect each unique visual aspect of your brand or specific product (this can be anything from a physical product to a computer user interface).  If granted, the resulting registrations would then work together with the Trademark registrations you have on your name and logo to keep unscrupulous competitors from copying any visual aspect of the brands or products you worked hard to create and promote.

If you are interested in more detail related to your situation it is best to speak with an attorney.

Andrei Tsygankov is the Co-Founder and COO of SmartUp® and a partner at Founders Legal (Bekiares Eliezer LLP). As an attorney, Andrei specializes in corporate, commercial, trademark, and international business matters.

andrei