Yes. Product packaging can potentially receive trademark protection as trade dress when its distinctive, nonfunctional appearance identifies the source of the goods.
Trade dress can protect the overall commercial appearance of packaging, potentially including features such as its shape, configuration, colors, graphics, texture, label placement, and arrangement of visual elements. The USPTO defines trade dress broadly as the total image and overall appearance of a product or its packaging.
However, attractive or unusual packaging does not automatically qualify for trademark protection. The claimed packaging must function as a source identifier rather than merely as decoration, and functional features generally cannot be monopolized under trademark law.
For consumer product companies, trade dress can become particularly valuable when customers recognize a product on a store shelf or online marketplace from its packaging before they even read the brand name.
What Is Trade Dress?
Trade dress is a form of trademark protection that can cover the overall appearance or presentation of a product or its packaging.
Traditional trademarks often consist of names, logos, slogans, or symbols. Trade dress extends trademark principles to visual combinations that communicate source to consumers.
The USPTO’s current TMEP explains that trade dress can include features such as size, shape, color or combinations of colors, texture, and graphics. Trade dress may involve the design of the product itself, the packaging surrounding the product, or other qualifying source-identifying features.
For a consumer product company, potentially relevant packaging trade dress could include a distinctive bottle shape combined with an unusual label arrangement, a recognizable box configuration, a consistent placement of graphic elements, or another nonfunctional visual presentation consumers associate with one source.
Trade dress generally protects the overall commercial impression rather than giving the company exclusive rights in every individual feature viewed in isolation.
Is Trade Dress the Same as a Trademark?
Trade dress is a type of trademark protection.
Section 2 of the Lanham Act permits registration of qualifying symbols or devices, and the USPTO treats trade dress as falling within that framework.
The distinction is primarily one of form.
A conventional word mark might protect the name printed on a bottle. A design registration might protect the company’s logo. Trade dress may protect the recognizable overall appearance of the bottle or packaging itself.
A consumer product can therefore contain several separate trademark assets simultaneously.
The company name may be one trademark. The product name may be another. A logo may have separate protection. The package configuration or overall presentation may potentially constitute trade dress.
One registration does not automatically protect all of those elements.
What Parts of Product Packaging Can Trade Dress Protect?
Potentially protectable packaging features can include shape, color combinations, texture, graphic arrangements, label positioning, container configuration, and combinations of these elements.
The strongest trade dress claim often involves the combination rather than one common feature.
For example, a company may not be able to claim exclusive rights to an ordinary cylindrical bottle, the color blue, or a rectangular label by themselves. Those elements may be common throughout the industry.
A particular combination of container shape, label location, color placement, graphics, and other nonfunctional features may create a distinctive overall commercial impression.
This is why trade dress protection should be defined carefully.
A brand should identify exactly which features it claims as source-identifying rather than broadly asserting ownership over the general “look and feel” of its industry.
Can the Shape of a Product Package Be Trademarked?
Potentially.
A distinctive bottle, jar, box, pouch, container, or other package configuration may qualify for trademark protection when the configuration functions as an indication of source and is not functional.
The fact that a package shape is different from one competitor’s package is not enough.
Consumer product industries frequently rely on common packaging formats. Beverages appear in bottles and cans. Cosmetics often appear in jars, pumps, tubes, or droppers. Household products may use spray bottles or handled containers.
Trademark protection becomes more plausible when the particular configuration is sufficiently unusual and source-identifying rather than simply another variation of an ordinary industry container.
A company considering protection for its package shape should therefore examine the broader marketplace before assuming its configuration is distinctive.
What Is the Difference Between Product Packaging and Product Design?
Product packaging concerns the container, wrapping, or presentation surrounding the product. Product design concerns the appearance or configuration of the product itself.
The distinction is legally important because the Supreme Court treats these categories differently.
In Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000), the Supreme Court held that product design can never be inherently distinctive for trademark purposes. Product-design trade dress must acquire secondary meaning before it can receive Principal Register protection.
Product packaging is different. Packaging may sometimes be inherently distinctive if consumers are likely to perceive its appearance immediately as identifying source.
When it is unclear whether claimed trade dress is product packaging or product design, Wal-Mart generally favors treating the ambiguous configuration as product design.
For consumer product companies, correctly identifying what is being claimed is therefore critical.
Can Product Packaging Be Inherently Distinctive?
Yes, potentially.
Unlike product design, product packaging can sometimes be inherently distinctive.
The USPTO’s current TMEP explains that packaging may be inherently distinctive because distinctive packaging is often naturally understood by consumers as identifying the source of the product.
However, not every creative package is inherently distinctive.
The USPTO must consider the overall context and the impression the packaging would make on purchasers.
Packaging that consists primarily of common industry elements or familiar decorative choices may not immediately communicate source.
If packaging is not inherently distinctive, the company may still potentially obtain protection by proving acquired distinctiveness.
What Is Acquired Distinctiveness for Product Packaging?
Acquired distinctiveness, sometimes called secondary meaning, exists when consumers have come to associate the claimed packaging with a particular source.
Instead of the package being inherently source-identifying from the beginning, marketplace experience teaches consumers that the particular presentation belongs to one brand.
Evidence may include the length and nature of use, advertising specifically promoting the packaging, advertising expenditures, consumer recognition evidence, sales information, statements from customers or dealers, and other evidence demonstrating source association. The USPTO cautions that long use or substantial advertising expenditures alone do not necessarily prove acquired distinctiveness.
For a consumer brand, this means consistency can matter.
If the company repeatedly uses the same recognizable packaging architecture over a meaningful period, consumers have a better opportunity to learn that the appearance indicates source.
A company that completely redesigns its packaging every few months may have a harder time establishing that one consistent presentation has developed secondary meaning.
How Can a Brand Build Secondary Meaning in Its Packaging?
Consistent and deliberate use is important.
The company should repeatedly present the packaging in substantially the same recognizable form and, when appropriate, emphasize distinctive packaging features in advertising.
Marketing that explicitly encourages consumers to recognize the package can be particularly relevant.
For example, advertising might consistently feature the unusual container configuration as a recognizable brand element rather than treating the package merely as a background object.
The company should also preserve evidence over time.
Historical product photographs, packaging samples, retailer displays, advertisements, social media campaigns, sales records, media coverage, consumer surveys, and other materials can become valuable if acquired distinctiveness later needs to be demonstrated.
Packaging history should be treated as potential intellectual property evidence rather than discarded every time the company updates its design files.
What Makes Packaging Functional?
Trade dress cannot protect functional features.
The Supreme Court explained in TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), that a feature is functional when it is essential to the use or purpose of the article or affects its cost or quality. The USPTO continues to apply this standard in trade dress examination.
For packaging, a feature may be functional because it improves storage, dispensing, transportation, durability, manufacturing efficiency, or another practical aspect of the product.
Examples might include a handle designed to make a heavy container easier to carry, a shape selected because products stack more efficiently during shipping, a dispensing mechanism controlling product flow, or a closure designed to prevent leakage.
Trademark law generally cannot be used to give one company indefinite exclusivity over useful features competitors need to make effective products.
Does a Packaging Feature Lose Protection Just Because It Has Some Function?
Not every feature that performs some practical role is automatically legally functional.
Almost every package serves some purpose. A bottle holds liquid. A box contains a product. A lid closes a container.
The TMEP specifically distinguishes between something merely performing a function and being legally functional for purposes of Section 2(e)(5). The inquiry focuses on whether the claimed design is essential to the product’s use or purpose, affects cost or quality, or otherwise satisfies the applicable functionality analysis.
This distinction matters when defining the claimed trade dress.
A company may not be able to monopolize the basic concept of a bottle, but particular nonfunctional ornamental aspects of a bottle configuration may potentially serve as trademarks.
Can a Utility Patent Affect Trade Dress Protection?
Yes.
A utility patent can provide significant evidence of functionality when the patent discloses the utilitarian advantages of the features later claimed as trade dress.
TrafFix involved precisely this issue. The Supreme Court treated an expired utility patent as strong evidence that the claimed product feature was functional.
Consumer product companies should therefore coordinate patent and trademark strategy carefully.
Marketing materials can also become relevant. If a company repeatedly advertises a package feature as making the product easier to use, cheaper to manufacture, more durable, easier to ship, or otherwise practically superior, those statements may later affect a functionality analysis.
A feature marketed as a utilitarian breakthrough may be difficult to characterize later as merely ornamental source-identifying trade dress.
Can Functional Packaging Ever Become Protectable Through Secondary Meaning?
No.
Acquired distinctiveness cannot overcome functionality.
Even if millions of consumers strongly associate a functional feature with one company, trademark law generally will not provide perpetual trade dress exclusivity over that functional feature.
TrafFix makes this distinction clear. If a feature is legally functional, secondary meaning does not rescue the trade dress claim.
This is one of the major differences between functionality and ordinary lack of distinctiveness.
A nondistinctive but nonfunctional package may potentially acquire distinctiveness.
A functional package feature remains unavailable for trademark monopolization regardless of consumer recognition.
Can Ordinary Packaging Receive Trade Dress Protection?
Common packaging generally faces a more difficult distinctiveness argument.
A standard bottle, jar, rectangular box, pouch, tube, or container may be widely used throughout the relevant industry.
Trade dress protection becomes stronger when the claimed presentation departs meaningfully from common industry design and consumers are likely to view the combination as indicating source.
Before pursuing packaging protection, companies should review competitor packaging.
Cohn Legal’s existing consumer-product guidance similarly notes that packaging that seems distinctive to a company’s design team may turn out to reflect common industry conventions once the marketplace is examined.
This market review can also help define which features genuinely distinguish the product.
Can a Single Color Be Protected as Trade Dress?
Potentially, although color presents additional distinctiveness issues.
Trademark law can protect color in appropriate circumstances when the color functions as a source identifier and is not functional.
However, color alone generally requires acquired distinctiveness rather than being inherently distinctive.
For product packaging, a distinctive combination or arrangement of colors may present a different analysis from a claim to one color standing alone.
Companies should also consider whether competitors need particular colors for functional or informational reasons.
For example, a color may indicate flavor, ingredient, product strength, safety characteristics, or another functional or descriptive message within an industry.
The stronger strategy is often to consider how color works as part of the overall packaging trade dress rather than assuming a brand can claim exclusive rights to a color in the abstract.
Can Label Placement Be Part of Trade Dress?
Potentially.
The location, shape, and arrangement of labels or graphics can contribute to the overall commercial appearance of packaging.
For example, a consistently positioned diagonal label combined with other distinctive features could form part of a larger trade dress claim.
Again, the relevant question is generally the overall commercial impression.
The company should avoid assuming that protection of a particular arrangement gives it exclusive rights over ordinary labeling practices used throughout the industry.
Trade dress tends to be strongest when multiple nonfunctional elements work together to create a presentation consumers recognize as one brand.
Can Product Packaging Be Registered With the USPTO?
Yes, qualifying product packaging trade dress can be federally registered.
A trade dress application requires particular attention to the drawing and description because the USPTO must be able to determine exactly what the applicant claims as the trademark.
The current TMEP requires drawings and descriptions of trade dress marks to distinguish clearly between features claimed as part of the mark and features that are not claimed.
This makes trade dress applications more technically demanding than many ordinary word-mark applications.
The application should not leave competitors or the public guessing about which aspects of the package are supposedly protected.
How Do You Draw Product Packaging in a Trademark Application?
Trade dress applications often use solid and broken lines.
Solid lines generally show the features claimed as part of the trademark.
Broken or dotted lines can show portions of the product or packaging that provide context but are not claimed as part of the mark.
The USPTO requires the drawing and written description to explain this distinction. If broken or dotted lines are used merely to indicate positioning or unclaimed matter, the description should state that those portions are not part of the mark.
For example, a company might claim a particular raised pattern and label configuration on a bottle while showing the ordinary bottle cap and other unclaimed portions in broken lines.
The drafting of the claim can materially affect the resulting scope of registration.
Why Is the Trademark Description Important in a Trade Dress Application?
The description defines what the drawing is intended to claim.
For an ordinary standard-character word mark, describing the trademark can be relatively straightforward.
For packaging trade dress, the description may need to identify the specific three-dimensional configuration, colors, positioning, surface features, or other elements being claimed and explain which visible features are excluded.
The USPTO’s current TMEP expressly requires the drawing and description to accurately depict the trade dress the applicant intends to register.
An unclear or overly aggressive description can create examination problems and uncertainty about the boundaries of the claimed rights.
Trade dress applications should therefore define the protected presentation with precision.
Can a Brand Exclude Functional Elements From Its Trade Dress Application?
In appropriate circumstances, yes.
If a proposed trade dress is not functional overall but contains insignificant functional elements, the USPTO may require those features to be removed from the claimed mark or shown in broken or dotted lines.
This allows the applicant to claim the nonfunctional source-identifying presentation without asserting exclusive trademark rights over utilitarian matter.
However, adding a few ornamental details does not necessarily save a design that is functional overall.
The TMEP specifically states that when the overall design is functional, inclusion of a few arbitrary or nonfunctional features does not automatically make the overall configuration registrable.
Can a Company File for Packaging Trade Dress Before Launch?
Potentially.
An applicant with a bona fide intention to use qualifying packaging can file an intent-to-use application before commercial launch.
However, trade dress raises issues that may not be fully evaluated until the USPTO can see how the packaging is actually used.
The current TMEP notes that product-packaging distinctiveness often depends on context and purchaser perception. In intent-to-use applications, an inherent-distinctiveness refusal will generally await submission of a specimen, although an examining attorney has discretion to raise the issue earlier when appropriate.
An early application can still be valuable when a company has committed to a distinctive packaging system before launch.
The claimed design should be sufficiently developed and stable to support the filing strategy.
What Specimen Can Show Use of Packaging Trade Dress?
For consumer goods, the actual packaging itself can provide strong evidence of trademark use.
A photograph showing the genuine product sold in the claimed packaging may demonstrate how consumers encounter the trade dress in commerce.
Packaging, labels, tags, containers, and qualifying point-of-sale displays are commonly recognized forms of specimens for goods.
The package submitted as a specimen should match the trade dress claimed in the application closely enough to establish use of the applied-for mark.
A conceptual rendering or design mockup does not establish actual marketplace use.
For a product that has not launched, an intent-to-use filing is generally preferable to creating artificial evidence solely for the application.
Should Brands Search Existing Trade Dress Before Launching New Packaging?
Yes, particularly when the planned packaging closely resembles an established competitor’s distinctive presentation.
Trademark clearance is usually associated with product names and logos, but visual branding can also produce disputes.
A new brand may use an entirely different name while adopting packaging so similar to an established competitor that consumers could still be confused about source, sponsorship, or affiliation.
A pre-launch review can therefore examine the marketplace for unusually distinctive packaging configurations and registered design marks in addition to conventional word marks.
This can be particularly important in crowded categories such as beverages, cosmetics, food, household goods, and personal care products.
Does Having a Different Brand Name Prevent a Trade Dress Claim?
Not necessarily.
A different word mark can reduce confusion in some situations, but it does not automatically eliminate a trade dress dispute.
Consumers encounter products as complete presentations.
If a competitor closely copies a distinctive package configuration, color arrangement, graphic layout, or overall presentation, trademark issues may remain even when the brand names are different.
The strength of the claim depends on the distinctiveness and nonfunctionality of the asserted trade dress, similarity of the competing presentations, marketplace circumstances, and other relevant confusion factors.
A company should therefore avoid treating a different label name as automatic permission to duplicate a competitor’s recognizable packaging.
Can Unregistered Packaging Trade Dress Be Enforced?
Potentially.
Section 43(a) of the Lanham Act can provide protection for qualifying unregistered trade dress.
However, there are important evidentiary consequences.
Under 15 U.S.C. § 1125(a)(3), a party asserting infringement of trade dress that is not registered on the Principal Register bears the burden of proving that the claimed matter is not functional.
The party must also establish the other requirements applicable to the claim, including protectable trade dress and likely confusion.
Federal registration can therefore provide important advantages even though registration is not always a prerequisite to trade dress enforcement.
What Must a Brand Prove in a Trade Dress Infringement Case?
The precise elements and articulation can vary by jurisdiction and circumstances, but a trade dress plaintiff generally must establish protectable rights and likely consumer confusion.
Distinctiveness and nonfunctionality are central to whether the asserted trade dress is protectable.
The company must also define the claimed trade dress clearly enough that the court and defendant can understand what is allegedly being copied.
For unregistered trade dress, federal law expressly places the burden of proving nonfunctionality on the party asserting protection.
A vague allegation that a competitor copied the brand’s “overall vibe” is considerably weaker than a carefully defined trade dress claim supported by evidence showing consistent use and consumer source recognition.
Is Trade Dress Protection Permanent?
Potentially, trademark rights can continue as long as the legal requirements remain satisfied and qualifying rights are maintained.
This is one reason functionality doctrine is so important.
Utility patents are intentionally time-limited. Trademark law should not be used to create perpetual exclusivity over functional features after patent protection ends.
The Supreme Court emphasized this competition concern in TrafFix.
Nonfunctional source-identifying packaging, however, may potentially remain protected as long as it continues functioning as a trademark and the owner maintains applicable rights.
Is Trade Dress the Same as Copyright Protection for Packaging?
No.
Copyright and trade dress protect different aspects of packaging.
Copyright may protect sufficiently original illustrations, photographs, graphic artwork, typography arrangements, or other creative expression appearing on product packaging.
Trade dress protects source-identifying commercial appearance.
A package can potentially involve both.
For example, an original illustration printed on a box might qualify for copyright protection, while the overall combination of box shape, color placement, label arrangement, and other features might potentially function as trade dress.
The requirements, duration, ownership rules, registration procedures, and infringement standards differ.
Consumer brands should therefore separate the underlying artwork from the overall source-identifying packaging presentation when developing an intellectual property strategy.
What Is the Difference Between Trade Dress and a Design Patent?
Trade dress and design patents can sometimes protect overlapping visual features, but they are different rights.
A design patent protects a new, original, ornamental design for an article of manufacture for a limited statutory term.
Trade dress protects nonfunctional source-identifying appearance under trademark law and can potentially continue longer if trademark requirements remain satisfied.
Trade dress often requires a company to establish that consumers recognize the presentation as indicating source, particularly where acquired distinctiveness is required.
Design patent protection does not depend on consumer source recognition in the same manner.
For a distinctive new package, companies may therefore consider whether design patent protection can provide an earlier layer of protection while trademark significance develops.
Can Brands Use Copyright, Design Patents, and Trade Dress Together?
Potentially.
A sophisticated product packaging strategy can involve multiple intellectual property rights.
The product name can be protected as a word mark.
The logo can receive separate trademark protection.
Original label illustrations or graphics may qualify for copyright.
An ornamental package configuration may potentially qualify for design patent protection.
The overall nonfunctional source-identifying presentation may develop trade dress rights.
These rights should complement rather than be confused with one another.
Cohn Legal’s existing consumer-product guidance similarly emphasizes that product packaging may contain several distinct intellectual property assets requiring different forms of protection.
Should a Brand Register Its Name Before Its Packaging?
For many new consumer product companies, the primary word mark will usually be the first trademark priority.
The brand name can begin functioning as a source identifier immediately and often remains stable even when packaging changes.
Trade dress may require more development.
A startup may redesign packaging during manufacturing, retailer testing, customer feedback, or product-line expansion. Consumer recognition of a particular packaging system may also take time to develop.
This does not mean packaging protection should be ignored.
Rather, the company should identify which rights are ready for protection at each stage.
A distinctive stable package expected to become a major brand asset may justify earlier trade dress or design-patent analysis, while the primary word mark remains the foundation of the trademark portfolio.
Should Packaging Stay Consistent if a Company Wants Trade Dress Protection?
Consistency can be highly valuable.
Trade dress depends on consumers recognizing a particular presentation as indicating source.
If the package changes dramatically every season, establishing that one presentation carries source significance may become difficult.
Brands can still modernize packaging, but major redesigns should be evaluated against existing trade dress strategy.
Companies seeking long-term protection should identify the visual features that form the core of the packaging identity and consider retaining those features even as secondary elements evolve.
This approach can preserve consumer recognition while allowing the design to remain contemporary.
What Records Should a Brand Keep to Support Packaging Rights?
Companies should retain dated examples of packaging actually used in commerce.
Historical photographs, physical samples, design specifications, advertising campaigns, retailer displays, catalogs, e-commerce pages, sales figures, market research, media coverage, and consumer-recognition evidence can all become useful.
Records should show both how long the packaging was used and how prominently it appeared in marketing.
If the company later seeks acquired distinctiveness under Section 2(f), the USPTO permits evidence concerning advertising, promotional use, expenditures, consumer or dealer statements, and other proof of source recognition.
Preserving those materials from the beginning is easier than trying to reconstruct them years later.
What Should a Company Do if a Competitor Copies Its Packaging?
The first step is to preserve evidence.
The company should document the competing packaging, seller, website, marketplace listings, advertising, dates, retailers, and other information showing how consumers encounter the product.
The company should then identify precisely which rights it owns.
The dispute may involve registered or unregistered trade dress, word marks, logos, copyrighted artwork, design patents, or several rights simultaneously.
A comparison should consider the entire commercial presentation rather than simply pointing out that both packages use one similar color or container.
Potential responses can include direct communication, marketplace complaints when appropriate, cease-and-desist correspondence, negotiation, or litigation.
The enforcement strategy should reflect the strength of the underlying rights and the seriousness of the marketplace harm.
Can a Competitor Copy Individual Features Without Infringing Trade Dress?
Possibly.
Trade dress protection does not necessarily give the owner exclusive rights to every component of the package.
A competitor may remain free to use common, descriptive, functional, or otherwise unprotectable features.
The problem becomes stronger when the competitor combines features in a way that creates a confusingly similar overall commercial impression.
For example, one company may not own the concept of a white box, a gold line, or a centered product name individually. A distinctive combination of those and additional elements may present a different question if consumers have learned to associate the complete presentation with one source.
This is another reason trade dress should be defined as precisely as possible.
How Can Consumer Brands Build Protectable Packaging From the Beginning?
Packaging should be designed with both marketing and intellectual property considerations in mind.
Brands should first avoid relying solely on standard industry packaging conventions.
Distinctive nonfunctional visual elements can then be developed consistently across the product line.
The design team should distinguish aesthetic source-identifying features from functional decisions involving shipping, dispensing, manufacturing, storage, or product preservation.
The company should also document who created the packaging and make sure relevant design and copyright rights are owned by the appropriate business entity.
Once the packaging becomes stable, the business can evaluate trademark, copyright, design-patent, and other appropriate protection.
Finally, the company should monitor competitors and maintain historical evidence showing how the package has been used and promoted.
The goal is not simply to make the product visually attractive.
It is to create a distinctive presentation consumers can repeatedly recognize as coming from one brand.
How Should Consumer Product Companies Protect Packaging and Trade Dress?
A strong product-packaging strategy begins by identifying the separate intellectual property assets within the package.
The product name and house brand should be evaluated as conventional trademarks. Logos and design marks may deserve separate registration. Original artwork may involve copyright. New ornamental package configurations may justify design-patent analysis.
For trade dress, the company should identify the overall nonfunctional appearance it wants consumers to recognize, determine whether that presentation is product packaging or product design, evaluate inherent or acquired distinctiveness, and carefully define the claimed features.
If federal registration is pursued, the drawing and description should clearly show what is claimed and what is excluded.
The company should then use the packaging consistently, preserve evidence of marketplace recognition, and monitor competitors for presentations that may create confusion.
Trade dress is therefore not simply another name for “protecting the packaging.”
It is trademark protection for packaging that has become, or is inherently capable of becoming, a source identifier.
Cohn Legal, PLLC advises consumer product companies and growing brands on product names, logos, packaging, trade dress, trademark registration, portfolio development, licensing, and enforcement. Cohn Legal’s consumer-product resources similarly treat packaging as part of a broader intellectual property portfolio rather than assuming one trademark registration protects every feature of the product presentation.
Primary Sources and Authorities
TMEP § 1202.02 governs registration of trade dress and defines trade dress as the total image and overall appearance of a product or its packaging. Current USPTO guidance addresses product design, product packaging, distinctiveness, functionality, drawings, descriptions, and identification requirements for trade dress applications.
In Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992), the Supreme Court recognized that inherently distinctive trade dress can receive protection without proof of secondary meaning. The decision remains a foundational authority concerning inherently distinctive trade dress.
In Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000), the Supreme Court distinguished product design from product packaging and held that product design can never be inherently distinctive. Product packaging, by contrast, may potentially be inherently distinctive.
In TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), the Supreme Court reaffirmed that functional product features cannot receive trade dress protection and explained that a feature is functional when it is essential to the use or purpose of the article or affects its cost or quality.
15 U.S.C. § 1125(a)(3) provides that a party asserting infringement of unregistered trade dress bears the burden of proving that the matter sought to be protected is not functional.
USPTO Section 2(f) guidance explains that acquired distinctiveness may be supported through evidence including advertising and promotional materials, advertising expenditures, statements demonstrating consumer recognition, and other evidence showing that consumers understand the claimed matter as a source identifier.
Author: Abraham Cohn, U.S. trademark attorney and founder of Cohn Legal, PLLC. Cohn Legal advises consumer product companies, CPG businesses, startups, and growing brands on trademark clearance, federal registration, packaging and trade dress protection, portfolio development, licensing, TTAB proceedings, infringement, and enforcement.