Protecting Your Brand's Look and Feel: Trade Dress Infringement

Protecting Your Brand's Look and Feel: Trade Dress Infringement

A brand is more than just a name or a logo; it is the total image and overall appearance of a product or its packaging. This "look and feel" is protected under trademark law as Trade Dress. Trade dress can include the design of a product, the shape of its packaging, the decor of a restaurant, or the layout of a website. Protecting your trade dress is essential to preventing competitors from copying your unique market identity.

What Qualifies as Protectable Trade Dress?

To be protected, trade dress must meet three key requirements:

1      Non-Functionality: The design or packaging element must not be essential to the use or purpose of the product, nor must it affect the cost or quality of the product. If the design is purely functional, it cannot be protected as trade dress; it must be protected by a patent.

2      Distinctiveness: The trade dress must be capable of distinguishing the source of the goods.

◦       Inherently Distinctive: For product packaging, the design may be so unique that it is immediately recognized as a source identifier.

◦       Acquired Secondary Meaning: For product design (the shape of the product itself), the brand owner must prove that the public has come to associate the design with a single source (i.e., my client). This is a high burden of proof.

3      Likelihood of Confusion: Just like with a word mark, the defendant's use of a similar trade dress must be likely to cause consumer confusion.

Strategic Trade Dress Enforcement

Trade dress cases are often complex because they involve visual evidence and the subjective "total image" of the product. I build a strong case by:

•       Focusing on Secondary Meaning: Gathering extensive evidence of advertising, sales, and consumer recognition to prove the design has acquired secondary meaning.

•       Using Side-by-Side Comparisons: Presenting clear visual evidence to the court demonstrating the striking similarity between my client's trade dress and the infringer's copy.

Your brand's visual identity is a valuable asset. I provide the specialized legal expertise required to protect your unique product design and packaging from unauthorized copying through aggressive trade dress enforcement.

Legal Disclaimer

This article is intended for informational purposes only and does not constitute legal advice. The information provided herein is general in nature and may not apply to your specific circumstances. Trademark law is complex and constantly evolving. Therefore, you should consult with a qualified intellectual property attorney for advice tailored to your individual needs and situation. No attorney-client relationship is formed by reading this article.