The Florida Bar

Trade Dress

December 14, 2022

Trade dress describes all of the elements that a company might use to promote a product or service. Trade dress may include the packaging, labeling, the way a display appears on store shelves, and even the design of the product itself.

Statutory Source

In the United States, similar to trademarks, a product’s trade dress is legally protected by the Lanham Act. The Lanham Act is the federal statute that regulates and protects trademarks and trade dress.

Purpose & Nature

The purpose of both trademark and trade dress protection is to protect the consumer from accidentally purchasing products that are designed to imitate other products. For example, it is arguable that the unique shape of a Coca-Cola bottle combined with its distinctive red logo has achieved brand significant in the mind of the consumer. Thus, other soda companies would be prevented from using this same, unique combination of attributes because consumers might erroneously believe they were buying a Coca-Cola product.

Can I register my trade dress?

Yes. Trade dress can be registered with the USPTO or with individual states. However, federal registration affords your trade dress a higher level of protection because it applies nationwide.

Registering your trade dress prevents other companies or individuals from using similar product packaging or design. This will prevent consumers from confusing your products with the products of a similar producer, and can ultimately help your products to remain distinctive in the marketplace.

What is first to use?

Federal trade dress rights are established from the earliest date of first use of the trade dress on goods and services in interstate commerce or in commerce with a foreign country. Thus, when wondering which company has superior claims to a particular trade dress, you must look at who used the trade dress first in commerce, not merely who registered their trade dress with the USPTO or state first.

What are trade dress registration requirements?

  • The trade dress must be filed under the owner’s name and the owner must be providing the goods or services under the trade dress. An owner may be an individual or business entity.
  • Not functional. A trade dress cannot be functional, meaning that the configuration of shapes, designs, colors, or materials that make up the trade dress in question cannot serve a utility function outside of indicating a source to the consumer. For example, although consumers identified a unique spring design with a particular sign company, the spring could not get trade dress protection because it served a primarily utilitarian function.
  • The trade dress must be distinctive, meaning that consumers perceive the trade dress as identifying the source of a product. Product packaging is inherently distinctive. However, trade dress claimed in a product’s design is said to need secondary meaning to acquire distinctiveness. This means that the registrant must offer proof that there is an association in the mind of the consumer between the trade dress and the source.

Changes may occur in this area of law. The information provided is brought to you as a public service, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or substitute for the advice of a lawyer.