What is “trade dress”?
In addition to a label, logo, or other identifying symbol, a product may come to be known by its distinctive packaging — for example, the blue and yellow packaging of the Advil pain reliever box. Similarly, a service may become known by its distinctive decor or shape — for example, the yellow arches that symbolize McDonald’s franchises. 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).
Trade dress also is a type of mark. “Trade dress” refers to the overall image or impression of a product the way in which the product is packaged and presented to consumers. Generally, only those elements of a product which are nonfunctional as opposed to functional elements, such as yellow packaging of Kodak film which have acquired a secondary meaning, and which inform consumers about a product’s source, are considered protectible product trade dress. Under trademark law, trade dress is the total commercial image of a product. Generally trade dress is defined as the “‘total image and overall appearance'” of a good, further specifying that it ‘may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.
At one time the term referred only to the manner in which a product was dressed up to go to market e.g. a label, package, display card and other packaging. Today, the term refers to the totality of elements in which a product or service is packaged or presented. These elements combine to create the visual image presented to customers. This “trade dress” is capable of acquiring exclusive legal rights as a type of trademark—or, identifying symbol of origin.
