What is trade dress? No, it’s not when you swap clothes with your bestie – it’s a form of protection under the Trademark umbrella that some designers can, and do, monetize. Trade dress is protection afforded for the “total image or overall appearance of a good or service.” For example, product packaging, or product configuration, may be subject to trade dress protection. More specifically, trade dress protection can come in the form of the size, shape, color or color combo, texture, or graphics of a particular good or service.
Whether product packaging can be protected depends on whether it is inherently distinctive, meaning, its unique enough that others do not have or use it. Think of the Tiffany’s blue box with white ribbon – that is inherently distinctive to Tiffany’s and protected.
Image a bottle that when seen without a label, you would be able to identify what product that bottle belongs to. The shape of a bottle would be considered product configuration and if found to be protected only upon acquiring secondary meaning. Secondary meaning means that consumers associate that shape of such a good with that same brand; it has become a form of signifying who makes that product. This usually requires some a brand using a product configuration over a long period of time where consumers can easily identify it as belonging to that brand. A great example is the Coca-cola bottle, or even the Hermes Birkin.
Yup. The “ambiance” of a store can even fall under trade dress protection. This happened in a Supreme Court case, which held that trade dress may include the shape and “general appearance” of its signage, floor plan, exterior, décor, menu, and even servers’ uniforms. You can even trademark a sound or a scent. The NBC chimes (which just played in your head) are protected as are the scent of a certain type of yarn. It’s not that easy, though. Harley-Davidson tried to file a sound trademark for the roar of its V-twin engine sound in 1994, but after much opposition, withdrew its application.
Trade dress is an interesting and rather unknown protection afforded under the Lanham Act that should be considered for new & old companies alike.