Trade Dress


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Trade Dress

A product's physical appearance, including its size, shape, color, design, and texture.In addition to a product's physical appearance, trade dress may also refer to the manner in which a product is packaged, wrapped, labeled, presented, promoted, or advertised, including the use of distinctive graphics, configurations, and marketing strategies. In intellectual property law, a Cause of Action for trade dress infringement may arise when the trade dress of two businesses is sufficiently similar to cause confusion among consumers. In such situations the business with the more established or recognizable trade dress will ordinarily prevail. Two remedies are available for trade dress infringement: injunctive relief (a court order restraining one party from infringing on another's trade dress) and money damages (compensation for any losses suffered by an injured business).

Like Trademarks, trade dress is regulated by the law of Unfair Competition. At the federal level, trade dress infringement is governed primarily by the Lanham Trademark Act (15 U.S.C.A. § 1051 et seq.); at the state level, it is governed by similar Intellectual Property statutes and various common-law doctrines. Both state and federal laws prohibit businesses from duplicating, imitating, or appropriating a competitor's trade dress in order to pass off their merchandise to unwary consumers.

To establish a claim for trade dress infringement, a company must demonstrate the distinctiveness of its product's appearance. Trade dress will not receive protection from infringement unless it is unique, unusual, or widely recognized by the public. Courts have found a variety of trade dress to be distinctive, including magazine cover formats, greeting card arrangements, waitress uniform stitching, luggage designs, linen patterns, cereal configurations, and the interior and exterior features of commercial establishments. In certain contexts courts may find that distinctive color combinations are protected from infringement, as when a federal court found the silver, blue, and white foiled wrapping in which Klondike ice cream bars are packaged to be part of an identifiable trade dress (AmBrit v. Kraft, 812 F.2d 1531 [11th Cir. 1986]).

Goods that are packaged or promoted in an ordinary, unremarkable, or generic fashion normally receive no legal protection under the law of trade dress. For example, containers shaped like rockets and bombs are considered hackneyed devices for marketing fireworks and will not be insulated from trade dress infringement. At the same time, something as simple as a grille on the front end of an automobile may be considered sufficiently original if the manufacturer takes deliberate and tangible steps to promote that aspect of the vehicle over a long period of time.

The law of trade dress serves four purposes. First, the law seeks to protect the economic, intellectual, and creative investments made by businesses in distinguishing their products. Second, the law seeks to preserve the good will and reputation that are often associated with the trade dress of a particular business and its merchandise. Third, the law seeks to promote clarity and stability in the marketplace by encouraging consumers to rely on a business's trade dress when evaluating the quality of a product. Fourth, the law seeks to increase competition by requiring businesses to associate their own trade dress with the value and quality of the goods they sell.

Trade dress is different from a trademark, Service Mark, or Trade Name. Trademarks are words, symbols, phrases, mottos, logos, emblems, and other devices that are affixed to goods to demonstrate their authenticity to consumers. Levi's jeans, Nabisco cookies, Bic pens, Ford trucks, Rolex watches, and Heinz ketchup are just a few examples of well-known trademarks. Service marks identify services rather than goods. Roto-Rooter, for example, is the service mark of a familiar plumbing company. Trade names distinguish entire businesses from each other, as opposed to their individual goods and services. Coca-Cola, for example, uses its trade name to distinguish itself from other soft drink manufacturers. Under state and federal law, it is advantageous for businesses to register their trademarks, service marks, and trade names with the government. Conversely, trade dress has no formal registration requirements and receives legal protection simply by being distinctive and recognizable.

Further readings

American Law Institute. 1995. Restatement (Third) of Unfair Competition. New York: American Law Institute.

Dorr, Robert C., and Christopher H. Munch, eds. 1999. Trade Dress Law. 2d ed. Gaithersburg, Md.: Aspen Law & Business.

Harris, Ray K., and Stephen R. Winkelman. 2003. "Trade Dress: Always in Style?" IP Litigator 9 (May-June).

Mohr, Stephen F. 1995. Recent Trends in the Law of Trade Dress. New York: Practising Law Institute.

Prosser, Elise K., and James K. Smith. 2002. "Accounting for Trade Dress: Companies Need to Accurately Value Their Product's Unique Packaging or Appearance." Journal of Accountancy 194 (November).

Trade Dress, Product Configuration & Design Patent Protection. 2003. Mechanicsburg: Pennsylvania Bar Institute.

References in periodicals archive ?
The jury also rejected Reynolds' claims for false designation of origin and state law trade dress infringement and unfair competition.
having its principal place of business in New Jersey) (hereafter referred to as "Sakar") for the alleged infringement of the design patent and trade dress right owned by Nikon.
Pharmaceutical product development groups do not have to slow down activities while trying to determine product branding and trade dress.
However, they generally forget to Seek specific protection for the business's visual identity, with all its distinctive, identifying elements and features, which comprise the business' trade dress and are developed by the franchise and should, therefore, belong to and benefit the franchise's business.
PepsiCo chose packaging that closely mimics the distinctive and nonfunctional Simply trade dress and patented Simply closure, ostensibly to revitalise PepsiCo's fledgling Trop50 brand," Coca-Cola's lawyers said in court papers.
Patents and trademarks are both forms of intellectual property that can be critical to a company's success, and the specific combination of design patents and trade dress can perpetually protect some products.
12, 2007 against Fruit of the Earth for trade dress and patent infringement on its Olay Regenerist brands.
Classic examples of valuable, and protectable, trade dress include the curved shape of the old Coca-Cola bottle and the pinched shape of the Haig & Haig scotch bottle, the red and yellow box of Kodak film, the decor of a Two Pesos restaurant and the facade of a White Castle restaurant.
Trade dress protection of websites was not intended by the Legislature, has not been provided for by the Courts, and simply is not the proper safeguard for website owners.
Mark Brandon, president of Diamond Machining Technology (DMT), announced the company won a lawsuit against Jing Yin Lixin Diamond Tools of China, for patent and trade dress infringement.
Caterpillar recently introduced its new Power Edge[TM] trade dress to complement the changing shape of machines, work tools and engines.