Trade Dress: A Product’s Total Image and Overall Appearance

Even though most people associate trademarks with brand names (e.g., “Kodak”), trademarks also include trade dress, service marks, certification marks, and collective marks.  This article will focus on various aspects related to trade dress.


Trade Dress Basics

Originally, courts considered the term “trade dress” to encompass only a product’s packaging.  Over the years, however, the term has been expanded by various federal appellate courts to include the design of a product (e.g., the designs of bedroom furniture, sweaters, and notebooks).


As a general proposition, the “trade dress” of a product typically encompasses its total image and overall appearance.  According to a federal appeals court, trade dress “involves the total image of a product, and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.” 


In a noteworthy Supreme Court case, the trade dress of a Mexican fast-food restaurant was said to include the “shape and general appearance of the exterior of the restaurant, the identifying sign, the interior kitchen floor plan, the décor, the menu, the equipment used to serve food, the server’s uniforms, and other features reflecting the total image of the restaurant.” 


The Lanham Act

The Lanham Act is a federal statute that addresses the use and infringement of trademarks and related marks.  In particular, Section 2 of the Lanham Act provides for the registration of trademarks, which are defined to include “any word, name, symbol, or device, or any combination thereof [used or intended to be used] to identify and distinguish [a producer’s] goods…from those manufactured or sold by others and to indicate the source of the goods.” 


In addition to protecting registered marks, Section 43(a) of the Lanham Act also provides a cause of action to one who is injured when a person uses “any word, term, name, symbol, or device, or any combination thereof…which…is likely to cause confusion…as to the origin, sponsorship, or approval of his or her goods.”

Relying on these sections, various federal appellate courts have allowed trade dress infringement claims, reasoning that trade dress constitutes a “symbol” or “device.”  The U.S. Supreme Court, adopting similar reasoning, has concluded the same.  Furthermore, after Congress amended Section 43(a) by adding a provision that referenced “civil action[s] for trade dress infringement under this chapter for trade dress not registered,” the Supreme Court announced that “It is well established that trade dress can be protected under federal law.”

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