Trade Dress Rights – Beyond Words & Logos
Trade Dress Rights – Trade dress is a form of intellectual property. Trade dress is the visual element or aesthetics of a product or its packaging. Trade dress can be the visual appearance of a product or packaging that signify the entity behind the product to consumers. Think Coca-Cola. Think about that green Gecko lizard commercials (the trade dress) behind the Insurance Entity: GEICO. Trade dress is often divided into two categories: product packaging and product configuration.
TWO EXAMPLES – Trade dress rights have been granted to the physical shape of Coca-Cola’s iconic glass bottle shape. Trade dress rights have been granted for the bright red soles of Christian Louboutin shoes.
When people think about trademarks, the first things that come to mind are words and logos that embody a brand. So, why then, would companies invest millions into product packaging? Well, not only does well-thought out product packaging help to grab consumers’ attention, but it pushes the brand beyond the words and logos – into the realm of acquiring trade dress rights.
Trade dress, like trademarks, are protected by the Lanham Act, the primary federal trademark statute of law. Examples of trade dress include the shape, color, and arrangement of a product’s packaging like a children’s clothing line, magazine cover, the décor of a restaurant chain, and wine bottle display.
Trade dress rights come from being proactive. Trade dress can be registered on either the principal register or the supplemental register. Registration is not required for an owner to have trade dress rights, but on the principal register, registration grants constructive use to the owner and constructive notice to everyone else in the country. Furthermore, registration on the supplemental register allows the owner to protect its trade dress in foreign countries.
There are two legal requirements to register a trade dress on the principal register and protect your trade dress rights: the trade dress cannot be functional and must be distinctive. For example, the color red for stop signs serve a functional purpose of calling a driver’s attention to the sign, alerting them to stop and therefore, the color cannot be protected as trade dress. Additionally, the shape and color combination of Tide detergent bottles is distinctive, but only because the product packaging has acquired secondary meaning.