What is Trade Dress?

Trade dress is a business or product's "overall image and appearance." Trade dress may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques. For a restaurant, it is "the shape and general appearance of the exterior of the restaurant, the identifying sign, the interior kitchen floor plan, the decor, the menu, the equipment used to serve food, the servers' uniform and other features reflecting the total image of the restaurant." Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 765 n.1 (1992). Trade dress is a broad concept, which includes product packaging and product design/configurations. Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209-10 (2000).

Trade Dress can serve as a company's trademark or brand. If it is unique, and used to identify the company, it can be registered much in the same as the company's trademark (i.e., brand name or logo). To be protectable, trade dress must be distinctive or have acquired secondary meaning.

Some of the things courts have held to constitute trade dress include: an ouzo bottle; book and magazine covers; the appearance of a teddy bear toy; a Rubik's cube puzzle, the overall design of a sports shoe; the appearance of a video game console; and the decor, menu and style of a restaurant.

There are significant limitations however. A marketing approach or theme, for example, generally does not constitute trade dress. See Woodsmith Pub. Co. v. Meredith, 904 F.2d 1244,1248 (8th Cir. 1990); Revlon, Inc. v. Jerell, Inc., 713 F. Supp. 93, 97 (S.D.N.Y. 1989). Nor does the method or style of doing business. Prufrock Ltd. v. Lasater, 781 F.2d 129, 131-32 (8th Cir. 1986). Trade dress cannot be any functional aspect of a product's design or packaging.

Is it functional? Or arbitrary (not functional)?

For trade dress to be protected, it must be both non-functional and distinctive. Wal-Mart Stores, Inc., 529 U.S. at 210; Two Pesos, 505 U.S. at 775.

A product feature is functional, and not protectable, "if it is essential to the use or purpose of the article or if it affects the cost or quality of the article." Qualitex ' v. Jacobson Prods., Co., 514 U.S. 159, 165 (1995).

Trade dress will meet the distinctive requirement if either 1) it is inherently distinctive; or 2) has acquired distinctiveness through secondary meaning. Two Pesos, 505 U.S. at 769.

Trade dress is inherently distinctive if it is a design, shape or combination of elements so unique, unusual or unexpected that it is automatically perceived by consumers as an indicia of origin.

Secondary meaning is when the public associates a trademark or trade dress with a source or producer of goods or services, rather than just the product itself. If trade dress is well known and identifies a specific company to the public, such as the design of a coca cola can, it can be protectable.

The U.S. Supreme Court has limited trade dress rights significantly. Product design trade dress is never inherently distinctive, and therefor requires proof of secondary meaning. Wal-Mart Stores, Inc., 529 Ll.S, at 214-16.

Product packaging trade dress, on the other hand, may be inherently distinctive, if for example, it is unique or arbitrary packaging and serves to identify your company.

Trade Dress, Colors, Slogans
Under certain circumstances, a company can also register a federal trademark for a slogan, or even a color, if it non-functional and serves to identify the company. For example, it has been held that pink is a trademark of Owens-Corning for fiberglass insulation, because it has no functional purpose and is a totally arbitrary choice of color for fiberglass that consumers perceive as an indication of a specific brand of fiberglass.