Intellectual property (2023): Trade dress

Law School

Trade dress is the characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress is an aspect of trademark law, which is a form of intellectual property protection law.

Overview.

Trade dress is an extension of trademark protection to "the design and shape of the materials in which a product is packaged, . 'Product configuration,' the design and shape of the product itself, may also be considered a form of trade dress."

Product configuration applies particularly to situations where the product can be seen within the packaging (for example a toy car sold in packaging that operates as a shadow box for commercial display within—the collective look it creates is trade dress), or where the packaging is part of the product (for example the bottle of a soft drink, along with its visible contents, are trade dress, though the bottle is actually part of the product that retains its value to the consumer for as long as its contents last).

Like all intellectual property law other than patent law, trade dress and other trademark elements are subject to the bar on functional features (for example a handle cannot be protected, though it may contain trade dress features that can prevent exact replicas of a particular trade dress handle). It is a question of which elements of the packaging are intrinsic to the basic function of the packaging.

In the United States, the Lanham Act protects trade dress if it serves the same source-identifying function as a trademark. It is possible to register a trade dress as a trademark, but for practical reasons most trade dress and product configurations are protected without registration under 15 U.S.C. § 1125(a).

United Kingdom.

Trade dress can be protected as getup under the law of passing off in the UK. Passing off is a common law remedy for protecting an unregistered trade mark. Getup, packaging, business strategy, marketing techniques, advertisement themes etc. can also be protected under passing off.

United States.

Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another. For example, the shape, color, and arrangement of the materials of a children's line of clothing can be protectable trade dress (though, the design of the garments themselves is not protected), as can the design of a magazine cover, the appearance and décor of a chain of Mexican-style restaurants, and a method of displaying wine bottles in a wine shop.

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