June 1, 2024

Whether you are a Hollywood or Bollywood star or a middle schooler, life is often about appearances. It’s no different in the trademark world. Trade dress is the overall look and feel of your commercial service or product. It’s your image to the market. Strong trade dress includes competitive and compelling identifiers that directly tie specific images and a particular feel to your products and services. 

When thinking about trade dress, expand your vision beyond the contours of trademarks. An example of trade dress might include the packaging and labeling of goods, the layout of a restaurant or venue, or the unique color or flavor of a product. For example, a café for sports fans with franchise branches that all have the same sports themed booths, flatware, and employee uniforms — this is trade dress in action.

Like a trademark, you can protect your trade dress under the Lanham Act. (15 U.S.C. § 22). Your trade dress is protectable if it functions in the same source-identifying way as your trademark. While you can register your trade dress as though it was a trademark, in reality most trade dress is protected without registration under 15 U.S.C. § 1125(a), which prohibits false designations of origin, false descriptions, and dilution. 

What can you do to develop your trade dress? Select a distinct color and use it distinctly. For example, Reese’s Peanut Butter Cup wrappers use a specific brown and yellow design. Or, if you are a kid of any age, you may identify the shape of Goldfish crackers with your favorite snack. And, of course, the distinct shape of the Coca-Cola bottle is known worldwide. When you think about trade dress, think about the “total image” and “overall appearance” of your products and services. 

You can read more about how Appeal Courts in the United States have addressed trade dress in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S. Ct. 2753 (1992); and Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033 (2d Cir. 1992). 

Next Steps

For more information on trade dress, check out this article by the International Trademark Association. If you want to consult about your trademark ideas, schedule a consultation with MJ Vuinovich at (928) 233-6800 or reception@flaglawgroup.com. Se habla Español.

The information provided in this blog post does not, and is not intended to, constitute legal advice; instead, all information, content, and materials are for general informational purposes only.  Information in this blog post may not constitute the most up-to-date legal or other information.  This blog post contains links to other third-party websites.  Such links are only for the convenience of the reader, user or browser; Flagstaff Law Group, PLLC, and its members do not recommend or endorse the contents of the third-party sites.