Trade dress is governed by the same set of laws that protect unregistered trademarks. While traditional trademark law protects words or logos, trade dress law protects the total packaging and design of a product. Because trade dress often serves the same function as a trademark or service mark — the identification of goods and services in the marketplace — trade dress can be protected under the federal trademark laws and in some cases registered as a trademark or service mark with the United States Patent and Trademark Office.
When Trade Dress is Protectible
To be protectable, trade dress must be inherently distinctive or possess secondary meaning, which means that the public associates the packaging with a single source. Such evidence of secondary meaning may be shown through long term use of the design, large volumes of sales and advertising, unsolicited public comments concerning the design, licenses and requests to license the design, copying of the design and consumer testimony concerning the design. Additionally, the trade dress must be nonfunctional.
Infringement of Trade Dress
Protectible trade dress is infringed when a “likelihood of confusion” exists between a plaintiff’s trade dress and a defendant’s trade dress. The similarity between trade dress is gauged by the “ordinary buyer” standard, that is, whether an ordinary buyer would believe that both products came from the same source. Courts weigh various factors to determine likelihood of confusion, including the following:
- the strength or distinctiveness of the trade dress;
- the intent to copy and “cash in” on plaintiff’s reputation and goodwill;
- the similarity of the products;
- evidence of actual confusion;
- degree of care exercised by buyers; and
- the area, manner, and degree of concurrent use.
Trade Dress Rights
Similar to trademark protection, trade dress rights arise from use of the particular trade dress. Generally, trade dress rights become stronger the longer and more extensively they are used. When a party is successful in establishing a protectible trade dress interest, that party may assert its rights against others offering goods having a confusingly similar trade dress. The overall appearance of the articles or their packaging is then compared to determine whether the trade dress at issue is infringed.