When a competitor copies your product branding, the first steps are to preserve evidence, identify exactly what was copied, confirm which intellectual property rights you own, and evaluate whether consumers are likely to believe the competing product comes from your company or is affiliated with, sponsored by, or approved by your brand.
Not every act of copying is automatically trademark infringement. A competitor may legally sell a similar type of product or use common industry features. The stronger legal issue arises when the competitor copies source-identifying elements such as a brand name, product name, logo, distinctive packaging, or other protectable branding in a manner likely to cause consumer confusion.
The USPTO defines trademark infringement as unauthorized trademark use that is likely to cause confusion, deception, or mistake concerning the source of goods or services. Courts generally examine the similarity of the marks, the relationship between the products, how the goods are marketed and sold, the relevant consumers, evidence of actual confusion, the strength of the plaintiff’s trademark, and other circumstances.
Copying can also implicate trade dress, copyright, design patents, domain-name rights, or unfair competition depending on what the competitor actually copied.
For consumer brands, correctly identifying the copied asset is therefore the foundation of an effective enforcement strategy.
What Counts as Copying Product Branding?
Product branding can include much more than the company name.
A competitor might copy the house brand, product-line name, individual product name, logo, slogan, color arrangement, packaging graphics, label layout, product photographs, bottle shape, container design, or overall visual presentation.
Each element can raise a different legal issue.
A confusingly similar product name may create conventional trademark infringement concerns. Imitating the overall appearance of distinctive, nonfunctional packaging may implicate trade dress. Reproducing original illustrations or photographs can create copyright issues. Copying a protected ornamental product or package design may implicate a design patent.
Cohn Legal’s existing guidance regarding copied product branding likewise emphasizes that enforcement begins by separating these rights instead of treating every form of imitation as the same legal violation.
Is It Illegal for a Competitor to Sell a Similar Product?
Not necessarily.
Trademark law does not generally give a company ownership over the underlying concept of a consumer product.
If one company successfully sells reusable water bottles, another company is ordinarily free to sell reusable water bottles. If one skincare brand sells vitamin C serum, competitors may generally sell competing vitamin C products.
The legal problem is more likely to arise when the competitor copies protected branding or other intellectual property surrounding the product.
Trademark law protects source identifiers, not general business ideas.
Design patents can separately protect qualifying new, original, and ornamental product designs. The USPTO explains that design patents protect the ornamental appearance of an article rather than how the article functions.
The first enforcement question should therefore be: Did the competitor copy the product idea, or did it copy legally protectable intellectual property?
Can a Competitor Copy Your Brand Name With a Slightly Different Spelling?
A spelling change does not necessarily avoid trademark infringement.
Trademarks do not need to be identical to create likelihood of confusion.
The USPTO specifically evaluates whether marks are similar in appearance, sound, meaning, or overall commercial impression.
Suppose a hypothetical consumer brand operates under VELORA, while a competitor launches related products under VELOHRA.
The spelling is technically different, but consumers may pronounce and remember the marks almost identically.
These examples are hypothetical and have not been searched for trademark availability.
Likewise, adding generic or descriptive wording such as HOME, BEAUTY, NATURAL, GOODS, COMPANY, or SHOP may not necessarily eliminate confusion when the dominant portion of the competing marks remains similar.
The analysis should focus on how ordinary consumers perceive the marks, not whether a lawyer can identify textual differences when placing them side by side.
What if the Competitor Copies Your Product Name but Uses a Different Company Name?
Trademark concerns can still arise.
Consumers may recognize an individual product name independently from the company’s house mark.
For example, a company may operate under one corporate brand while consumers search for, recommend, and purchase its flagship product primarily by the product’s separate name.
A competitor does not automatically avoid a trademark problem by placing a different company name above a confusingly similar product mark.
The USPTO explains that likelihood of confusion depends heavily on the similarity of the trademarks and whether the associated goods or services are related.
If the allegedly copied product name has meaningful independent source significance, it should be evaluated separately from the house brand.
What if the Competitor Copies Your Logo?
A logo can receive trademark protection when it functions as a source identifier.
The competitor’s logo does not need to be a pixel-for-pixel reproduction before a dispute can arise.
Trademark analysis considers the overall commercial impression.
Similar dominant design elements, shapes, arrangements, lettering, or imagery may become relevant if consumers could mistakenly believe the products have a common source.
Federal registration of an important logo can strengthen the owner’s enforcement position by creating a public record and legal presumptions associated with the registered trademark.
Consumer brands with logos that carry significant recognition should therefore consider protecting the design separately from the underlying word mark.
What if the Competitor Copies Your Packaging but Uses a Different Name?
That may raise a trade dress issue.
Trade dress is a form of trademark protection covering qualifying aspects of a product’s overall image or appearance.
The USPTO defines trade dress as the “total image and overall appearance” of a product or its packaging and notes that it can include features such as shape, size, colors or color combinations, texture, and graphics.
This means a competitor might use a different word mark but still potentially create confusion by copying a highly distinctive package.
For example, a consumer may recognize a product from its bottle configuration, label placement, color system, and graphic presentation before reading the product name.
Trade dress protection is not automatic, however. The asserted packaging must satisfy trademark requirements, including distinctiveness and nonfunctionality.
Does Product Packaging Have to Be Federally Registered to Be Protected?
Not always.
Section 43(a) of the Lanham Act can provide protection against qualifying infringement of unregistered trade dress.
Federal law prohibits certain commercial uses of words, names, symbols, devices, and other designations that are likely to cause confusion concerning affiliation, connection, association, origin, sponsorship, or approval.
However, unregistered trade dress creates additional evidentiary burdens.
15 U.S.C. § 1125(a)(3) expressly provides that 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.
Registration can therefore provide important advantages, although qualifying unregistered packaging may still have enforceable rights.
What Makes Product Packaging Protectable as Trade Dress?
The packaging must be legally capable of functioning as a source identifier.
Two issues are particularly important: distinctiveness and functionality.
Product packaging can sometimes be inherently distinctive, while product design cannot be inherently distinctive and generally requires acquired distinctiveness before receiving Principal Register trademark protection. Current USPTO guidance follows the Supreme Court’s distinction in Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000).
The packaging must also be nonfunctional.
Under the functionality standard applied by the USPTO, trade dress is functional when a feature is essential to the use or purpose of the article or affects its cost or quality. Functional matter cannot be monopolized through trademark law.
A competitor can therefore often copy useful product or packaging features even when those features make the product recognizable.
Can a Brand Stop a Competitor From Copying a Functional Packaging Feature?
Generally not through trademark law.
Functionality is an important limit on trade dress protection.
A bottle handle may exist because it makes a heavy container easier to carry. A package shape may allow more efficient shipping. A closure may help prevent leakage. Those practical advantages can make the features difficult or impossible to monopolize indefinitely as trademarks.
The Supreme Court’s TrafFix Devices, Inc. v. Marketing Displays, Inc. decision remains a leading authority on this principle, and the USPTO continues to apply the rule that functional trade dress cannot be registered.
A company should therefore identify the nonfunctional source-identifying elements of its packaging rather than simply asserting ownership over every feature the competitor copied.
Can Copyright Protect Product Branding?
Potentially.
Copyright can protect original creative expression appearing within product branding, including qualifying illustrations, photographs, graphic artwork, and other visual works.
Suppose a competitor directly copies the product photographs from your website or reproduces an original illustration from your label.
Those activities may raise copyright issues independently from trademark law.
The U.S. Copyright Office explains that copyright protection generally exists from the time qualifying visual artwork is fixed, but a U.S. work must be registered before the owner can bring a copyright infringement lawsuit in federal court. The timing of registration can also affect eligibility for statutory damages and attorneys’ fees.
A single competitor product may therefore implicate both trademark and copyright rights.
Can a Design Patent Protect Against Product Copying?
Potentially.
A design patent can protect a new, original, and ornamental design for an article of manufacture.
The USPTO explains that design patent protection can involve the configuration or shape of an article, surface ornamentation applied to the article, or a combination of both.
Design patents and trade dress can therefore sometimes address overlapping visual aspects of a consumer product, but they operate differently.
Trade dress focuses on source-identifying appearance and is subject to trademark concepts such as distinctiveness and functionality.
A design patent protects qualifying ornamental design for a limited statutory period and does not require the owner to establish that consumers already recognize the design as identifying source.
The USPTO also recognizes areas in which design patent and copyright protection can overlap.
Companies developing distinctive products should consider these rights before competitors appear, not only after copying occurs.
What Should You Do First After Discovering a Copycat Product?
Preserve evidence before contacting the competitor.
Online materials can disappear quickly after a seller learns that an intellectual property owner is investigating.
The company should document how the competing branding appears in the marketplace, including product pages, packaging photographs, advertisements, social media posts, retailer listings, website pages, prices, seller information, dates, and URLs.
If commercially appropriate, purchasing the competitor’s product may preserve particularly useful evidence.
The company can retain the physical packaging, invoice, shipping materials, receipt, and actual product.
Historical evidence of the company’s own branding should also be preserved.
Cohn Legal’s existing brand-copying guidance likewise recommends documenting the competitor’s use before enforcement begins.
Why Is Evidence of Your Own First Use Important?
Trademark disputes frequently involve priority.
To prevail on a trademark infringement claim, a plaintiff generally must establish valid rights, priority over the defendant, and likelihood of confusion. The USPTO identifies these as central requirements of an infringement claim.
A company should therefore be prepared to show when it began using the relevant mark and how continuously it has been used.
Useful evidence can include dated packaging, invoices, shipment records, retailer purchase orders, archived websites, advertisements, product photographs, trade show materials, distributor records, social media posts, and other materials showing marketplace use.
A federal registration can provide important legal presumptions, but historical use evidence may still become highly relevant during a dispute.
Should You Confirm That You Actually Own the Copied Branding?
Yes.
Before accusing a competitor of infringement, confirm who owns each asserted right.
The company may own the primary trademark but discover that a freelance designer still owns certain packaging artwork. A subsidiary may own the product trademark while the parent company controls enforcement. A manufacturer may have created a product configuration. A photographer may own images appearing in the competitor’s listing.
Ownership questions should be resolved before a demand is made.
The stronger enforcement letter is the one that accurately identifies what the sender owns and the legal basis for the complaint.
Does Federal Trademark Registration Make Enforcement Easier?
It can.
The USPTO explains that a Principal Register registration creates legal presumptions concerning the validity and ownership of the mark and the registrant’s exclusive right to use it nationwide in connection with the identified goods or services, subject to applicable defenses and limitations.
Registration can also make it easier to demonstrate ownership when submitting complaints to marketplaces, retailers, distributors, or other intermediaries.
However, registration does not automatically prove that every competitor use infringes.
Likelihood of confusion still has to be considered.
A registration is therefore a strong enforcement asset, not an automatic right to prevent every use of similar wording or imagery.
What Factors Determine Whether the Competitor’s Branding Creates Confusion?
Courts generally evaluate multiple factors.
The exact test varies by federal circuit, but major considerations typically include the similarity between the marks, the relationship between the products, the strength of the plaintiff’s mark, how and where the products are sold and advertised, relevant consumers, purchasing conditions, evidence of actual confusion, and the defendant’s intent.
For consumer products, marketplace presentation can be particularly important.
Two products may appear side by side on Amazon, in the same grocery aisle, in the same beauty retailer, or in nearly identical social media advertisements.
The closer the commercial context, the stronger the concern may become when the branding is also highly similar.
Do You Need Evidence of Actual Customer Confusion?
Not necessarily.
Trademark infringement generally requires likelihood of confusion, not proof that confusion has already occurred.
Actual confusion can nevertheless be valuable evidence.
Consumers may send messages asking whether the competitor’s product is a new version of your brand, leave reviews on the wrong listing, tag the wrong social account, return a competitor product to your company, or contact customer support believing the businesses are connected.
Those examples should be preserved.
Even isolated confusion can help demonstrate how consumers perceive the competing branding, although the weight of that evidence depends on the circumstances.
Does the Competitor’s Intent Matter?
It can.
The USPTO identifies a defendant’s intent in adopting the challenged mark as one factor courts may consider in trademark infringement litigation.
Evidence that a competitor knew about the brand and deliberately attempted to imitate its appearance can therefore become relevant.
However, proving bad intent is not always required.
A competitor could unintentionally adopt confusing branding and still create a likelihood-of-confusion problem.
The legal focus remains consumer confusion, not simply whether the competitor admits copying.
Should You Contact the Competitor Before Filing a Trademark Complaint?
Sometimes.
A direct communication may resolve a straightforward dispute efficiently.
A competitor might agree to change a name, redesign packaging, remove product listings, stop using copied photographs, or negotiate a coexistence arrangement.
But communication should generally follow evidence preservation.
Once a competitor receives notice, webpages may change and disputed packaging may disappear from online listings.
The appropriate tone and scope of a demand should also reflect the strength of the rights.
Overstating a weak claim can create unnecessary escalation.
What Should a Trademark Cease-and-Desist Letter Include?
The precise contents depend on the dispute.
A letter may identify the trademark owner, relevant registrations or other rights, the challenged conduct, the reasons the owner believes confusion or infringement is occurring, and the corrective action requested.
Depending on the situation, the owner might request discontinuation of a confusing product name, changes to packaging, removal of online listings, cessation of logo use, preservation of evidence, or another remedy.
The letter should accurately distinguish among registered trademark rights, unregistered trade dress, copyright, design patents, and other claims.
The objective is not to include as many legal theories as possible.
It is to present the strongest supported rights clearly enough that the recipient understands the problem and what is needed to resolve it.
Can You Report Copied Branding to an Online Marketplace?
Potentially.
Many marketplaces and social platforms provide intellectual property reporting systems.
A complaint may be appropriate when a competitor is using a protected trademark, copyrighted material, or other covered intellectual property in violation of the platform’s procedures.
The company should choose the correct type of complaint.
A similar product is not automatically counterfeit. A copyright complaint should identify copyrighted material. A trademark complaint should identify the trademark and explain the infringing use.
Evidence preservation should occur before the report because successful platform enforcement may cause the listing to disappear.
Marketplace complaints can provide efficient relief, but they should be part of a broader enforcement analysis rather than used indiscriminately.
What if the Competitor Has Filed a USPTO Trademark Application for the Copied Brand?
The company should review the application promptly.
A marketplace dispute and a USPTO registration dispute are related but different.
If the competitor’s application is still pending, there may be opportunities to address it during the federal registration process.
Once an application is published for opposition, a party that believes it would be damaged by registration may potentially file a TTAB opposition within the applicable period.
If the conflicting mark has already registered, a cancellation proceeding may potentially be available depending on the circumstances and asserted grounds.
The Trademark Trial and Appeal Board decides whether an applicant or registrant has the right to obtain or retain federal registration. It does not decide trademark infringement, order a competitor to stop marketplace use, or award damages or attorneys’ fees.
This distinction is important when a competitor is both using and attempting to register copied branding.
Can a TTAB Opposition Stop the Competitor From Selling Its Product?
No.
The TTAB determines federal registration rights.
It cannot issue an injunction requiring a competitor to stop selling products or using branding in commerce, and it cannot award infringement damages.
If the business objective is to stop marketplace use, federal or state court litigation may be necessary depending on the claims.
A company can therefore have both a registration dispute and a marketplace infringement dispute occurring at the same time.
The appropriate forum depends on the remedy the company actually needs.
When Should a Company Consider Federal Trademark Litigation?
Litigation may become appropriate when the competitor refuses to stop, the commercial harm is substantial, consumer confusion is significant, or a negotiated solution cannot be reached.
Section 32 of the Lanham Act, 15 U.S.C. § 1114, governs qualifying infringement involving registered trademarks. Section 43(a), 15 U.S.C. § 1125(a), can address qualifying confusing uses involving words, names, symbols, devices, false designations of origin, and unregistered trade dress.
Potential remedies for proven trademark infringement can include an injunction requiring the defendant to stop, destruction or forfeiture of infringing articles, monetary recovery, and attorneys’ fees in qualifying cases.
The strength of litigation depends heavily on the evidence.
A company should therefore preserve the competing product, its own historical branding, sales information, advertisements, examples of confusion, and other relevant documents before a dispute reaches that stage.
What if the Competitor Copies the “Look and Feel” but No Specific Trademark?
The company should identify the claimed trade dress precisely.
Courts and competitors need to understand exactly what combination of features supposedly functions as the trademark.
A vague claim that another company copied the brand’s “aesthetic” or “vibe” may be difficult to enforce.
The asserted trade dress might instead be defined through a particular package configuration, arrangement of colors, label placement, graphics, and other nonfunctional elements that together create a recognizable overall commercial impression.
Current USPTO guidance requires trade dress to be evaluated for distinctiveness and functionality.
Strong trade dress enforcement begins with a clearly defined protectable presentation.
What if the Competitor Copies Only Common Industry Features?
That may not support a strong trademark claim.
Consumer product industries frequently develop design conventions.
Skincare packaging may use droppers and minimalist labels. Organic food brands may use earthy colors. Athletic products may rely on performance imagery. Household products may use similar functional containers.
Trademark law does not ordinarily give one business control over commonly used industry elements merely because it also uses them.
The stronger claim generally involves distinctive source-identifying elements or a distinctive combination of elements.
Marketplace evidence can help determine whether the allegedly copied presentation is truly unusual or simply follows conventions used by many competitors.
Can the Competitor Copy Your Product Colors?
Sometimes.
A color or color combination can potentially function as a trademark in appropriate circumstances, but color protection presents specialized distinctiveness and functionality issues.
One company ordinarily cannot prevent competitors from using a color merely because that color appears somewhere on its packaging.
The legal question becomes stronger when consumers have learned to recognize a particular nonfunctional color arrangement as identifying one source.
Color can also form part of a broader packaging trade dress claim.
Again, the relevant inquiry is source identification rather than aesthetic preference.
What if the Competitor Copies Your Product Photography?
That can raise copyright issues even when the product names are completely different.
Product photographs can contain copyrightable creative expression involving composition, lighting, arrangement, perspective, and other artistic choices.
A competitor that downloads photographs from your website and uses the same files to advertise its own products may therefore present a more direct copyright issue than a competitor that independently photographs a similar type of product.
Copyright ownership should still be confirmed.
If an outside photographer created the images, the company’s agreement with that photographer can become important.
For U.S. works, Copyright Office registration is required before filing an infringement action in federal court, and registration timing can affect access to certain remedies.
What if a Competitor Copies the Shape of the Product Itself?
Several possibilities should be evaluated.
Product shape may potentially involve design patent rights if the company obtained a patent covering the ornamental design.
It may also develop product-design trade dress protection in appropriate circumstances, although product design can never be inherently distinctive under the Supreme Court’s Wal-Mart rule and therefore requires acquired distinctiveness for trademark protection.
Functional product features cannot be monopolized through trade dress.
A company should therefore determine whether the copied product shape is protected by a design patent, has developed protectable trade dress significance, contains copyrightable features, or is simply an unprotected product configuration competitors may imitate.
Can a Famous Brand Have Broader Protection Against Copying?
Potentially.
Federal dilution law protects qualifying famous trademarks against certain uses likely to cause dilution by blurring or tarnishment even without the ordinary requirement of likely confusion.
However, the fame standard is demanding.
Under 15 U.S.C. § 1125(c), the trademark must be widely recognized by the general consuming public of the United States as a designation of source. Relevant considerations include advertising reach, sales, actual recognition, and federal registration.
A brand that is highly successful within a niche consumer category is not automatically “famous” for federal dilution purposes.
Most product-brand disputes will therefore continue to focus primarily on trademark infringement and likelihood of confusion.
Should You Publicly Accuse a Competitor of Copying Before Taking Legal Action?
Care should be taken.
Social media can make a public response tempting, particularly when customers are already pointing out similarities.
However, public accusations can complicate negotiations and create additional legal or reputational issues.
The company should first preserve evidence and evaluate the actual rights involved.
A competitor may have copied protectable branding, or the overlap may involve common product features that the original company does not exclusively own.
A legally grounded enforcement strategy is generally more useful than beginning with a public dispute before the rights have been analyzed.
Should You Change Your Own Branding to Avoid the Competitor?
Not automatically.
If the company has superior rights and strong established branding, changing its own identity may surrender valuable goodwill unnecessarily.
The appropriate response depends on priority, registration status, trademark strength, commercial harm, litigation risk, and the competitor’s willingness to change.
There may also be circumstances where both sides possess legitimate rights or where the existing branding has weaknesses that make negotiation preferable to aggressive enforcement.
The decision should follow the rights analysis rather than assume that either the first complainant or the larger company automatically wins.
Can Competitors Resolve Branding Disputes Without Litigation?
Yes.
Many trademark disputes resolve through negotiation.
Possible solutions can include a rebrand, package redesign, restriction to particular products, limitations on geographic markets, modification of logos, transition periods, inventory sell-off arrangements, licensing, or carefully structured coexistence agreements.
The appropriate solution should consider future expansion.
Two consumer brands that currently sell different products may eventually enter overlapping categories.
A settlement that resolves only today’s immediate issue can create another dispute when the businesses grow.
What Should You Do if the Copying Is Causing Immediate Sales or Reputation Harm?
Evidence gathering should happen quickly.
The company should document confused customers, diverted sales, retailer communications, product reviews, search results, online advertisements, and other evidence showing marketplace effects.
In serious infringement cases, injunctive relief can become particularly important because monetary compensation after several years may not fully repair lost brand control.
The USPTO identifies injunctions stopping infringing use among the remedies potentially available to a successful trademark plaintiff.
The urgency of enforcement should therefore reflect the severity and speed of the harm.
How Can Consumer Brands Make Future Copying Easier to Enforce Against?
Enforcement becomes easier when intellectual property protection is built before the dispute.
The company should conduct trademark clearance before adopting important names, obtain federal registration for house marks and commercially significant product names, evaluate important logos separately, and consider trade dress protection for distinctive packaging.
Original packaging artwork and product photography can be evaluated for copyright registration.
New ornamental product or packaging designs may warrant design-patent consideration before disclosure and commercialization deadlines become an issue.
The company should also maintain dated examples of packaging, advertising, product launches, sales records, and other evidence establishing how its branding developed.
A competitor may copy a successful consumer brand in a matter of weeks. Reconstructing years of intellectual property evidence after that happens is far more difficult.
What Is the Best Enforcement Strategy When a Competitor Copies Product Branding?
The best strategy begins by identifying the exact right that has been copied.
If the competitor uses a confusingly similar brand or product name, the primary issue may be trademark infringement.
If the competitor imitates distinctive, nonfunctional packaging, trade dress may be relevant.
If it copies photographs or illustrations, copyright should be considered.
If it duplicates a protected ornamental product design, design patent rights may apply.
Once the rights are identified, the company should preserve both the competitor’s conduct and evidence of its own priority and ownership.
The next step may involve a marketplace complaint, cease-and-desist demand, negotiation, TTAB proceeding, federal litigation, or a combination of those approaches.
A TTAB proceeding can address whether the competitor has a right to federal registration. It cannot stop marketplace use. Court litigation can address infringement and injunctive or monetary remedies.
Most importantly, a consumer brand should not assume that all copying is illegal or, conversely, that a competitor is free to imitate branding simply because it changed the company name.
Trademark law protects consumer understanding of source.
The stronger the company’s evidence that customers recognize its branding and that the competitor’s presentation is likely to create confusion, the stronger the foundation for enforcement.
Cohn Legal, PLLC advises startups, consumer product companies, CPG businesses, and established brands on trademark infringement, product-name disputes, copied packaging, trade dress, TTAB proceedings, cease-and-desist strategy, and federal enforcement. Cohn Legal’s existing guidance on brand copying similarly emphasizes evidence preservation and identifying the specific intellectual property involved before selecting an enforcement response.
Primary Sources and Authorities
15 U.S.C. § 1114 governs qualifying infringement involving federally registered trademarks. USPTO infringement guidance explains that a plaintiff generally must establish valid trademark rights, priority, and a likelihood that the defendant’s use will cause consumer confusion concerning source or sponsorship.
15 U.S.C. § 1125(a) provides a federal cause of action concerning qualifying false designations of origin and uses likely to cause confusion as to affiliation, connection, association, origin, sponsorship, or approval. Section 1125(a)(3) specifically places the burden of proving nonfunctionality on a party asserting unregistered trade dress protection.
TMEP § 1202.02 addresses registration of trade dress. Current USPTO guidance defines trade dress as the total image and overall appearance of a product or package and requires analysis of both distinctiveness and functionality.
Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000), establishes that product design cannot be inherently distinctive, while product packaging may potentially be inherently distinctive. TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), remains a leading authority establishing that functional features cannot receive trade dress protection. Both authorities are incorporated into the USPTO’s current trade dress examination framework.
The U.S. Copyright Office explains that qualifying visual art is protected upon fixation, while registration provides important enforcement benefits and is required before a U.S. copyright owner can bring an infringement action in federal court.
USPTO design patent guidance provides that a design patent may protect a new, original, ornamental design for an article of manufacture, including its configuration, surface ornamentation, or both.
The Trademark Trial and Appeal Board determines federal registration rights through proceedings including oppositions and cancellations. It does not determine infringement, issue injunctions stopping use, or award damages or attorneys’ fees.
Author: Abraham Cohn, U.S. trademark attorney and founder of Cohn Legal, PLLC. Cohn Legal advises consumer product companies, CPG businesses, startups, and established brands on trademark clearance, federal registration, product-name and packaging disputes, trade dress, TTAB proceedings, licensing, infringement, and brand enforcement.