Understanding Trade Dress and Product Design Protection in the Context of Trademark Law
Trade dress refers to the visual appearance of a product or its packaging that signifies the source of the product to consumers. In the context of protecting packaging designs, trade dress includes the overall look and feel of the packaging, which can encompass features such as size, shape, color, texture, graphics, and even particular sales techniques.
Key Aspects of Trade Dress:
- Source Identification: The primary function of trade dress is to indicate the source or origin of the product to consumers, allowing them to distinguish between different brands.
- Non-functionality: To be protected, the trade dress must be non-functional. This means that the features being protected do not affect the product’s performance or purpose, but rather serve to identify the product’s source. Functional elements are not eligible for trade dress protection because they must remain available for use by competitors.
- Distinctiveness: Trade dress must be distinctive, either inherently or through acquired distinctiveness (secondary meaning). Inherent distinctiveness means that the trade dress is unique enough on its own to identify the source of the product. Acquired distinctiveness means that, through extensive use and recognition by consumers, the trade dress has come to be associated with a particular source.
- Likelihood of Confusion: For a trade dress infringement claim to succeed, there must be a likelihood of consumer confusion between the protected trade dress and the infringing packaging. This means that consumers could be misled into believing that there is an association between the two products due to the similarity in their packaging.
Examples of Trade Dress Protection in Packaging:
- Coca-Cola Bottle: The unique contour shape of the Coca-Cola bottle is protected as trade dress because it is distinctive and non-functional, serving to identify the product to consumers.
- Tiffany & Co. Box: The distinctive blue color and packaging design of Tiffany & Co. jewelry boxes are protected as trade dress, indicating the source of the product.
- Apple’s Packaging: Apple has trade dress protection for the minimalist design and layout of its product packaging, which is distinctive and associated with the brand.
Trademark Law Considerations:
- Registration: While trade dress can be protected under common law through use, registering trade dress with the United States Patent and Trademark Office (USPTO) can provide additional legal advantages, such as a presumption of validity and nationwide notice of the claim.
- Enforcement: Companies can enforce their trade dress rights by filing lawsuits against infringers who use confusingly similar packaging that could mislead consumers about the source of the products
Conclusion
In summary, trade dress in the context of packaging design is about protecting the distinctive visual elements of packaging that help consumers identify the product’s source. It involves ensuring that these elements are non-functional, distinctive, and not likely to cause consumer confusion with other products. Contact one of our Trademark Lawyers to learn more.
