What Is Trade Dress?

Trade dress protection extends to the total commercial image: a product's packaging design (the Coca-Cola bottle shape), a restaurant's interior décor, or a product's overall configuration. To be protected, trade dress must be (1) distinctive — either inherently or through acquired secondary meaning (consumers associate the appearance with a specific source), and (2) non-functional — features essential to a product's use cannot be monopolized as trade dress. Trade dress infringement requires showing the similarities create a likelihood of consumer confusion about the source of goods. Unlike patents, trade dress protection can last indefinitely as long as the trade dress remains in use and distinctive. Trade dress can be registered with the USPTO as a trademark for stronger enforcement rights and nationwide constructive notice.

Many businesses have protectable trade dress without realizing it — and may be vulnerable to imitation or inadvertently infringing on others. An IP attorney can evaluate whether your product appearance, packaging, or store design qualifies for protection and advise on registration and enforcement strategy.