What Exactly is Trade Dress?

trade-dressTrade dress is a legal term which generally refers to the type of protection which extends towards the way something looks and feels.  Like other areas of trademark law, trade dress law protects against consumer confusion.  Trade dress protection extends to things like the way a store looks, the way a building looks, clothing, websites, phones, even designs of a magazine.

Trade dress is like a brother of to trademark law and its protection is based upon the same section of federal law (the Lanham Act) which protects trademarks and service marks in general.  Trade dress may even be registered with the Patent Office and, if registered, obtains the benefits that are extended towards registered trademarks and service marks.

How is Trade dress different?

However, unlike some other areas of intellectual property law, trade dress protection is not limited to a singular embodiment; i.e. a work of art, a logo, a slogan, a claimed invention, etc.  Trade dress law protects the general look and feel of something and prevents infringement, even if the knock-off does not look like the protected item.  A claim for trade dress protection typically involves a distinctive, non functional design, which is registered or has acquired secondary meaning and is infringed when a knock-off is confusingly similar to the protected item and incorporates the distinctive nature of the protected item.

What does Trade dress protection allow?

Trade dress protection allows a right holder to protect not only functional devices, but also non-functional devices.  In this way, trade dress protection bridges the gap between trademark and patent law providing protection for both.  There are, however, critics who are concerned with extending trade dress protection to functional devices like websites and phones.  In most areas of intellectual property law, there is a balance between encouraging innovation and developing the public domain.  The intellectual property laws are society’s attempt at striking a balance by providing a monopoly right for a limited time in exchange for this eventual donation to the public domain.

What do critics say about Trade dress?

Critics of trade dress protection argue that providing trade dress protection to functional devices essentially allows monopoly rights to functional devices in the absence of any novel functionality like patent law or extends protection in excess of the term of patent protection which these functional items may be allowed if they were patented.  In essence, the critics argue that trade dress protection is being used to circumvent the balance of provided under the patent laws by extending the protection beyond the term of patents.

The protection is for the consumer

While, trade dress does provide a term of protection which is longer than a patent, the purpose of trade dress is different than a patent.  It is to protect the consumer from being confused and really, it is not the rights holder who is being protected, it is the consumer.   The reward is to the company who has created a unique presentation which has acquired some recognition within the marketplace.  Unfortunately, in todays highly competitive business environment, sometimes the purpose of the law becomes clouded by competing companies like Apple and Samsung who find many reasons to challenge each other.