Tuesday, September 21, 2010

What is a trade dress?

This is not just about any dress. A trade dress is actually a form of a trademark. It protects the “touch and feel” of a product, its total presentation, total experience. Examples inlcude The Hard Rock Café and the shape of Absolut vodka. The concept of a trade dress is based on distinctiveness and customer recognition and can include unique size, shape, feel, look, design, graphics, color combinations, etc.

The same rules apply to trade dress as to trade marks or service marks. The feature for which you seek protection has to be distinct. Distinctiveness can be either inherent or acquired. Some features can be inherently distinct, on the basis of the feature itself. Fashion designs, for example, are not inherently distinct. The Supreme Court held in Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 120 S.Ct. 1339 (2000) that product designs such as the appearance of a line of children’s clothing are not considered to be inherently distinctive and can only be protected if they acquire distinctiveness through sales or advertising. Accordingly, acquired or secondary distinctiveness comes from the public’s growing association of this image with one particular source. This can be proven by showing the owner’s advertising, promotions and sales.

Another rule relevant to trade dress is that the feature for which you seek protection cannot have a functional purpose. This may be difficult as even the most unique packaging, for example, has a functional purpose of protecting the product. However, the rule remains, - design or feature has to be nonfunctional and be used only to identify the source.

Similarly to other types of trade marks or service marks, infringement of a trade dress happens when there is a likelihood of confusion by customers between similar goods/services and their sources. These are just the “nuts and bolts” of trade dress law. Trade dress protection can get quite complicated, and assistance of an experienced attorney may be required to obtain it.

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