Updated, November 2015
1. What is trade dress?
Trade dress is the overall commercial image (look and feel) of a product that indicates or identifies the source of the product and distinguishes it from those of others. It may include the design or shape/configuration of a product; product labeling and packaging; and even the décor or environment in which services are provided. Trade dress can consist of such elements as size, shape, color and texture, to the extent that such elements are not functional. In many countries, trade dress is referred to as “get-up” or “product design.”
2. What types of trade dress are protectable?
Traditionally, trade dress was viewed as applicable to products, and product packaging trade dress generally is more readily recognized as being distinctive and entitled to protection. The concept of trade dress has been expanded in some countries to include services. In the United States, for example, trade dress protection applies to the “total visual image” where services are concerned. Thus, the U.S. Supreme Court found that a restaurant’s décor, menu, layout and style of service were protectable. In other countries, it may be more difficult to establish trade dress rights, as the threshold for distinctiveness often is extremely high.
3. How may trade dress be protected?
In the United States, trade dress may be protected via common-law rights (acquired through use in commerce) and/or by registration. In most other countries, some types of trade dress can be protected through registration and through actions for passing off and/or unfair competition.
4. What are the requirements for registration of trade dress?
An application to register trade dress with the United States Patent and Trademark Office (USPTO) must include all of the same content as any other trademark application, including a description of the trade dress, identification of the product or service to be covered and payment of the appropriate fee. Substantively, the trade dress must be both distinctive (i.e., recognizable to consumers as identifying the source of the product or service) and nonfunctional (i.e., not be essential to the use or purpose of, and not affect the cost or quality of, the product or service). Functional trade dress is not registrable even if it is distinctive.
The requirements for registering trade dress vary widely from country to country. Generally speaking, an application for trade dress must meet the standard requirements for any trademark application. The trade dress must either be inherently distinctive or have acquired distinctiveness. It cannot be functional.
5. How does one prevent others from using similar trade dress?
In the United States, trade dress, like a trademark, is protectable under the federal Trademark Act (Lanham Act). If the trade dress is unregistered, the first hurdles that the trade dress owner must clear are articulating which aspects of its product or packaging constitute trade dress and establishing that the trade dress is protectable. The owner must then establish that there is a likelihood of confusion. Similarity would be evaluated by considering the similarity of the respective trade dress designs. All other likelihood-of-confusion factors generally are the same as in a case comparing traditional trademarks or logos. Trade dress rights may be enforced through an action in federal district court or through an opposition or cancellation proceeding before the USPTO’s Trademark Trial and Appeal Board.
In many other countries, protection arises mostly from filing and distinctiveness and is examined within the registration process. In addition to trademark law actions, actions for unfair competition and passing off provide a basis for enforcement under certain circumstances.
Additional INTA Resources
Topic Portal: Trade Dress
Trade Dress: International Practice and Procedures
Searchable database of comprehensive country profiles on trade dress protection and enforcement. INTA Membership required.
Trade Dress Image Library
Case summaries and images from trade dress infringement decisions in 70 jurisdictions. INTA Membership required.
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