Practice Areas

Trade Dress

“Trade dress” is closely akin to trademark in concept, in that both can be “almost anything at all that is capable of carrying meaning” including letters, numbers, two-dimensional designs and three-dimensional objects, sounds, scents, textures, shapes, colors, and combinations thereof. The indispensable prerequisite is that the trade dress (or trademark) uniquely indicate the source or origin of the product.

A fundamental issue which arises with trade dress is that the trade dress for which you are seeking protection cannot be “functional.” Under one formulation, this means that trade dress will be deemed functional—and therefore not protectable—if it’s a feature which is essential to the use or purpose of the article or [that] affects the cost or quality of the article, that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage.

The reasoning behind the theory that “functional means not protectable” is simply that the law is unwilling to grant a competitive advantage—in functionality—to a firm under the guise of protecting trade dress.

Some examples of visual trade dress which have been found to be protectable:

A restaurant’s special décor
The colors and shapes of pharmaceutical pill capsules
The overall look of a line of greeting cards
Magazine covers
The shape of buildings (White Castle restaurants, for example)
The layout of point-of-sale displays
Bottle shapes

Trade dress can be registered just as a trademark or service mark with the federal Trademark Office. For example, the distinctive shapes of the Coca-Cola and Pinch Scotch bottles are registered, as are Kodak’s yellow and red color combination, and Wedgwood blue.

The law of trade dress and the interpretation and analysis of the issues that arise in this area are complex and constantly evolving.

In such circumstances, you want experienced counsel at your side.

Amster Rothstein & Ebenstein, LLP - Intellectual Property Law

Practice Areas

Trade Dress

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