In legal terms, a trademark is any word, phrase, logo, or other symbol that is used to identify a product and/or the source of a product. One of the main purposes of a trademark is usually used to distinguish one product and/or manufacturer from others. In other words, a trademark essentially prevents one party from using the name or logo of another party to describe its own goods in a way that would result in consumer confusion.
Trademarks can either be owned by individuals, partners, or any legal entity, such as a corporation. Examples of the most popular trademarks that are recognized worldwide include Google, Apple, Walmart, Rolex, Disney, as well as the mouse ears, golden arches, apple logo, etc.
Typically, in order to qualify for the full amount of protections that are granted to trademark owners in the United States, a trademark must first be registered with the U.S Patent and Trademark Office (“USPTO”).
Once the trademark is registered, the trademark will then be protected for an initial period of 10 years, with the owner filing updates with the USPTO to show that the trademark is still in use. In order to become registered with the USPTO, a trademark cannot:
- Be identical or similar to any already existing trademark or related service/goods;
- Be on the list of prohibited trademarks or on the reserved list of trademarks; or
- Be too descriptive and otherwise not qualify for protection.
After the trademark has been registered with the USPTO, the owner will then be protected against other individuals or businesses who would want to copy or duplicate the trademark. Further, all of the country will be considered to have been put on notice that the specific trademark has been created and registered.
It is important to note that before registering a trademark, the party seeking registration should conduct a search through the USPTO to determine whether or not any other individual or entity is already using the trademark. It is especially important to not copy or utilize another party’s registered trademark, as doing so could result in being sued under the theory of trademark infringement.
What Is Trade Dress?
In short, the term trade dress is an aspect of trademark law that refers to the characteristics of the visual appearance of a product or its packaging which signify the source of the product to consumers. In other words, trade dress encompasses the overall look and feel of a product or service, including the product’s packaging, design, and shape. Trade dress often plays a crucial role in establishing brand identity and preventing consumer confusion by ensuring that products and the packaging that accompanies the product are uniquely associated with their source.
While names and logos are protected under trademark law, a product’s trade dress may also be protected under intellectual property laws. Consumers often use trade dress as a means of identifying a product’s source by looking at its packaging, configuration, and appearance. For instance, most consumers can recognize the unique shape of a glass Coca-Cola bottle or the shape of a Hershey’s Kiss chocolate.
Importantly, trade dress protection extends to both the design and shape of packaging materials, along with the product itself. For instance, when purchasing a signal Hot Wheels car, the design of the blister packaging and the car inside may both be protected, along with the trademark protection of the logo itself.
Once again, the purpose of trade dress is to be able to identify the source of a product or service by allowing the trade dress to distinguish the product from other similar products. However, trade dress protections do not extend to elements of the packaging that are intrinsic to the basic function of the packaging. For example, the handle of a bag or peg hole for a product meant to be hung on a peg shelf cannot be protected.
Further, if it is shown that consumers can easily tell the difference between two products, even if the trade dress is similar, then there will likely be no liability for trademark infringement of trade dress.
In general, trademark infringement involving trade dress requires confusion among consumers that can lead them to purchasing one product when they believe they are purchasing another. Infringement of trade dress can harm companies because the imposter product takes away sales from the original company. Further, it can also harm the reputation of the original company if the impostor product is inferior.
All in all, trade dress is everything that is used to promote a service or product. A service’s trade dress may include its environment or decor, such as the distinctive decor of a particular restaurant chain. For example, many fast food establishments have a unique distinctive decor, such as McDonald’s arches and Playplace. A product’s trade dress generally includes its packaging, display, appearance, or configuration.
Who Can Claim Trade Dress Protection?
Any company or manufacturer may claim trade dress protection if their trade dress is distinctive from other companies and manufactures and serves to identify the source of their product. In other words, if the public mistakenly associates another product with their company’s product because of similar packaging, the company can claim trade dress protection.
In order to protect a product’s trade dress, the party seeking protection must demonstrate that the average consumer would be confused if another product appeared in a similar trade dress or packaging. In other words, it is the burden of the party seeking protection to demonstrate the uniqueness of their trade dress, such as Tiffany blue or the red-sole of a Christian Louboutin shoe.
In order to qualify for trade dress protection under intellectual property laws, a functional aspect of the product must be created specifically in order to promote that product or service. As such, it is very common for liquor bottles to have unique shapes that serve no other purpose than to identify the product contained within the bottle.
What Is the Difference Between Trade Dress and Trademark?
Once again, trade dress is a specific type of trademark. Trade dress refers to the overall visual appearance and design of a product or service, including distinctive elements such as the product’s color, shape, packaging, and layout. Trade dress extends beyond individual trademark protection to protect the entire image that is associated with a brand or business.
Whereas a trademark protects a specific symbol, word, phrase, or design that uniquely identifies goods or services, trade dress extends beyond those protections to protect the overall product itself, including unique product packaging.
For example, trademark protections may protect Apple’s bitten apple logo or the McDonald’s golden arches, whereas trade dress protections may protect the Coca-Cola bottle’s shape or the distinctive decor of a restaurant, such as IHOP or Olive Garden.
All in all, trade dress encompasses the overall visual identity of a brand, whereas trademarks specifically protect individual symbols or identifiers associated with products or services. Once again, both trademarks and trade dress play crucial roles in establishing brand recognition and consumer trust when purchasing a product or service.
Can I Register My Trade Dress?
In short, yes, a trade dress may be registered with the United States Patent and Trademark Office (“USPTO”) in the same manner as registering a trademark. However, it may be difficult to register a trade dress, because in some cases, it may be difficult to express a product or service’s trade dress in drawings or words.
In recent years, trade dress protections have even extended to providing protections to websites and phone applications since they often have a particular look and feel. This is because trade dress refers to the colors, the design, the layout, and other elements that influence the overall look and feel of a website or application.
Do I Need a Lawyer for Help With Trade Dress?
If you have any questions, concerns, or disputes associated with trademark infringement involving trade dress, it may be in your best interests to consult with an experienced trademark lawyer. An experienced attorney will be able to help you understand your legal rights and options according to both federal law and the laws of your specific state with regard to your product or service’s trade dress.
Further, an attorney will be able to advise you as to whether or not your product or service’s trade dress is likely to cause confusion given the presence of another party’s trade dress. Finally, an attorney will also be able to represent you in court, as needed, should the need for legal action arise.
