What Is a Trade Dress?

Trade dress is the overall appearance of a product's packaging or a business's decor. It can be protected as a trademark if it is distinctive and not functional. Trademark rights in the United States come from using a mark, not from registering it, and trade dress is protected against confusing uses under 15 U.S.C. § 1125(a), including trade dress that was never registered.

Restaurant decor can be inherently distinctive; a Texas case, Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992), established that point. But product design is never inherently distinctive and requires proof of secondary meaning, that buyers associate the design with one source (Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205 (2000)). A feature that is essential to the product's use or purpose, or affects its cost or quality, is functional and cannot be protected; an expired utility patent claiming the feature is strong evidence of functionality (TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23 (2001)). In a suit over unregistered trade dress, the plaintiff must prove the trade dress is not functional (§ 1125(a)(3)).

Pinpoint: 15 U.S.C. § 1125(a). Related term: Trade Dress.

Sources.

• 15 U.S.C. § 1125(a): false designations of origin, including trade dress, and the burden of proving non-functionality for unregistered trade dress. law.cornell.edu

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