What is “trade dress”?
Trade Dress is a distinctive, nonfunctional feature, which distinguishes a merchant’s or manufacturer’s goods or services from those of another. The trade dress of a product involves the “total image” and can include the color of the packaging, the configuration of goods, etc… Even the theme of a restaurant may be considered trade dress. Examples include the packaging for Wonder Bread, the tray configuration for Healthy Choice frozen dinners, and the color scheme of Subway sub shops. Such a broad and ambiguous definition makes trade dress very easy to manipulate. Seeking protection against trade dress infringements can be vital to the survival of a business.
In addition to a label, logo, or other identifying symbol, a product may come to be known by its distinctive packaging — for example, the yellow packaging of Kodak film. Similarly, a service may become known by its distinctive decor or shape — for example, the orange-like structure of Orange Julius juice stands. Collectively, these types of identifying features are commonly termed “trade dress.” Because trade dress often serves the same function as a trademark or service mark — the identification of goods and services in the marketplace — trade dress can be protected under the federal trademark laws and in some cases registered as a trademark or service mark with the U.S. Patent and Trademark Office (USPTO).
The trade dress of a product consists of its overall appearance in the marketplace, including container shape, labeling, colors, printing styles and the like. Not only do conventional packaged consumer goods have a trade dress, but entire commercial enterprises can have a trade dress that includes architectural features, color schemes and decor. Trade dress generally encompasses product packaging/labeling and product design.
