Trade Dress

TRADE DRESS

A product's physical appearance, including its size, shape, color, design, and texture.

In addition to a product's physical appearance, trade dress may also refer to the manner in which a product is packaged, wrapped, labeled, presented, promoted, or advertised, including the use of distinctive graphics, configurations, and marketing strategies. In intellectual property law, a cause of action for trade dress infringement may arise when the trade dress of two businesses is sufficiently similar to cause confusion among consumers. In such situations the business with the more established or recognizable trade dress will ordinarily prevail. Two remedies are available for trade dress infringement: injunctive relief (a court order restraining one party from infringing on another's trade dress) and money damages (compensation for any losses suffered by an injured business).

Like trademarks, trade dress is regulated by the law of unfair competition. At the federal level, trade dress infringement is governed primarily by the Lanham Trademark Act (15 U.S.C.A. § 1051 et seq.); at the state level, it is governed by similar intellectual property statutes and various common-law doctrines. Both state and federal laws prohibit businesses from duplicating, imitating, or appropriating a competitor's trade dress in order to pass off their merchandise to unwary consumers.

To establish a claim for trade dress infringement, a company must demonstrate the distinctiveness of its product's appearance. Trade dress will not receive protection from infringement unless it is unique, unusual, or widely recognized by the public. Courts have found a variety of trade dress to be distinctive, including magazine cover formats, greeting card arrangements, waitress uniform stitching, luggage designs, linen patterns, cereal configurations, and the interior and exterior features of commercial establishments. In certain contexts courts may find that distinctive color combinations are protected from infringement, as when a federal court found the silver, blue, and white foiled wrapping in which Klondike ice cream bars are packaged to be part of an identifiable trade dress (AmBrit v. Kraft, 812 F.2d 1531 [11th Cir. 1986]).

Goods that are packaged or promoted in an ordinary, unremarkable, or generic fashion normally receive no legal protection under the law of trade dress. For example, containers shaped like rockets and bombs are considered hackneyed devices for marketing fireworks and will not be insulated from trade dress infringement. At the same time, something as simple as a grille on the front end of an automobile may be considered sufficiently original if the manufacturer takes deliberate and tangible steps to promote that aspect of the vehicle over a long period of time.

The law of trade dress serves four purposes. First, the law seeks to protect the economic, intellectual, and creative investments made by businesses in distinguishing their products. Second, the law seeks to preserve the good will and reputation that are often associated with the trade dress of a particular business and its merchandise. Third, the law seeks to promote clarity and stability in the marketplace by encouraging consumers to rely on a business's trade dress when evaluating the quality of a product. Fourth, the law seeks to increase competition by requiring businesses to associate their own trade dress with the value and quality of the goods they sell.

Trade dress is different from a trademark, service mark, or trade name. Trademarks are words, symbols, phrases, mottos, logos, emblems, and other devices that are affixed to goods to demonstrate their authenticity to consumers. Levi's jeans, Nabisco cookies, Bic pens, Ford trucks, Rolex watches, and Heinz ketchup are just a few examples of well-known trademarks. Service marks identify services rather than goods. Roto-Rooter, for example, is the service mark of a familiar plumbing company. Trade names distinguish entire businesses from each other, as opposed to their individual goods and services. Coca-Cola, for example, uses its trade name to distinguish itself from other soft drink manufacturers. Under state and federal law, it is advantageous for businesses to register their trademarks, service marks, and trade names with the government. Conversely, trade dress has no formal registration requirements and receives legal protection simply by being distinctive and recognizable.

further readings

American Law Institute. 1995. Restatement (Third) of Unfair Competition. New York: American Law Institute.

Dorr, Robert C., and Christopher H. Munch, eds. 1999. Trade Dress Law. 2d ed. Gaithersburg, Md.: Aspen Law & Business.

Harris, Ray K., and Stephen R. Winkelman. 2003. "Trade Dress: Always in Style?" IP Litigator 9 (May-June).

Mohr, Stephen F. 1995. Recent Trends in the Law of Trade Dress. New York: Practising Law Institute.

Prosser, Elise K., and James K. Smith. 2002. "Accounting for Trade Dress: Companies Need to Accurately Value Their Product's Unique Packaging or Appearance." Journal of Accountancy 194 (November).

Trade Dress, Product Configuration & Design Patent Protection. 2003. Mechanicsburg: Pennsylvania Bar Institute.