"Trade dress" refers to the way a product, or place of
business, is "dressed" in the marketplace. It is the image of a product's packaging or the look of a place of business. Trade dress differentiates one brand's products from another's. It can include features, such as size, shape, color or color combinations, texture, and graphics.
To qualify for protection, the trade dress must be distinctive, meaning that the trade dress serves to distinguish the product originator from its competitors. Marks can acquire distinctiveness, or "secondary meaning," if it can be shown that through time and sales promotion efforts, the public has come to identify the mark or trade dress with a single source.
Trade dress must be non-functional. Patent law protects functional inventions, whereas trade dress is an identifier of a product's source. Examples of trade dress include the Coca-Cola® bottle and the front grill of a Rolls Royce®.
The Lanham Act's protection of registered trademarks extends to unregistered trade dress. To recover for trade dress infringement under Section 43(a) of the Lanham Act, a plaintiff must prove by a preponderance of the evidence: (1) that its trade dress has obtained secondary meaning in the marketplace; (2) that the trade dress of the two competing products is confusingly similar; and (3) that the appropriated features of the trade dress are primarily non-functional.
MAXINE BARASCH, ESQ.
KEOHANE & D'ALESSANDRO, PLLC