Trade dress is a form of intellectual property protection available to products and services that have a distinctive and original design and shape. Much like trademarks, trade dress is used to associate a product or service with its source. A classic example of a product with trade dress protection is the Hershey’s Kiss. The short conical pyramid of foil wrapped chocolate topped with a paper tag is an iconic representation of trade dress. Consumers readily recognize the shape and design of the Hershey’s Kiss and immediately know what the product is and who is the source of this American classic.
Examples of famous trade dress include the Coca-Cola glass bottle, the red tab on Levi’s Jeans, the blue of Tiffany’s packages, and the shape and color of IHOP restaurants. These products and services provide instantly recognizable designs that consumers associated with their respective brands. Trade dress for a product can be expressed in many ways, including, but not limited to the product itself (Hershey’s Kiss) or the packaging (Coca Cola glass bottle). For a service, the trade dress can be found in the decor or environment in which a service is provided, such as the blue roof of the IHOP restaurant. In fact, trade dress can be protected for sounds, flavors, colors, texture, graphics, product displays, particular business techniques, the look and feel of a website, and motion/moving images. Trade dress protection exists under state common law and federal law without official registration, and many products rely on this form of protection. However, it is also possible to file for federal trade dress registration via the Lanham Act, the same piece of legislation that provides Federal Trademark protection. Trade dress applicants can file for protection in a similar manner to that of regular word marks and logo marks. As per regular trademarks, trade dress requires distinctiveness to be filed on the principal register (for an explanation of distinctiveness see my post What is a Strong Trademark). If the shape or design of the product seeking trade dress protection has not yet developed distinctiveness the application can be filed on the supplemental register, however, it is generally preferable to be on the principal register for a host of reasons (a topic for another day). Because of the emphasis on shape and design there are some interesting overlaps between trade dress and design patents (for a more detailed discussion of design patents see my post What is a Design Patent). One commonality is that both forms of IP rights relate to non-functional aspects of products or services. Functionality means that the design cannot be solely or primarily functional, and the design cannot be the only form that provides a necessary function for the product. Some distinctions between these two forms of IP protection relate to distinctiveness and term. Trade dress holders must show distinctiveness for both federal registration (on the principal register) and any form of enforcement. In contrast, design patents do not require distinctiveness to be patented or enforceable. With regard to the length of protection, trade dress can potentially exist for the life time of the product, whereas design patents expire fifteen years after issuance. If you are interested in seeking trade dress or a design patent for your product or service it is highly advisable to consult an experienced IP attorney to discuss your individual needs and goals. If you have any questions about trade dress, design patents, trademarks or utility patents, and would like to discuss protection and registration please contact me at [email protected] or visit my website at www.chiaraiplaw.com Comments are closed.
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Should I Copyright the Trademark in My Patent?
AuthorNick Chiara is an IP attorney with over twenty years of patent and trademark experience. Archives
July 2022
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