Trade dress in trademark law protects the visual elements of a product or brand, like packaging, design, and overall look. It goes beyond words and logos, safeguarding distinctive visual features that contribute to brand identity and consumer recognition.

To get trade dress protection, a design must be distinctive and non-functional. This means it should be unique or have acquired secondary meaning, and not be essential to the product's use. Courts have shaped these requirements through key cases like Two Pesos and Wal-Mart Stores.

Understanding Trade Dress in Trademark Law

Trade dress in trademark law

• Trade dress encompasses visual appearance of a product or packaging, conveying overall image or total look (Coca-Cola bottle shape)
• Extends trademark protection beyond words and logos safeguarding distinctive visual elements (McDonald's restaurant design)
• Covers product packaging, design, restaurant decor, website layout protecting brand identity (Apple store layout)

Requirements for trade dress protection

• Distinctiveness requirement demands unique or unusual design (Tide detergent bottle)
  • Inherent distinctiveness involves arbitrary or fanciful elements
  • Acquired distinctiveness (secondary meaning) develops through consumer recognition
    • Factors: length of use, advertising, sales volume
• Non-functionality requirement ensures trade dress not essential to product use (Louboutin red soles)
  • Utilitarian functionality prohibits protection of essential features
  • Aesthetic functionality prevents monopolizing design elements affecting competition
• Additional requirements include use in commerce and priority of use

Trade Dress Case Law and Distinctions

Case law on trade dress

• Two Pesos v. Taco Cabana (1992) established inherently distinctive trade dress protection without secondary meaning
• Wal-Mart Stores v. Samara Brothers (2000) distinguished product packaging from product design trade dress
• TrafFix Devices v. Marketing Displays (2001) clarified non-functionality requirement
• Qualitex Co. v. Jacobson Products (1995) expanded protection to include color alone (pink fiberglass insulation)

Product packaging vs product design

• Product packaging trade dress can be inherently distinctive (Pringles can)
  • Unique bottle shapes, distinctive labels easier to protect without secondary meaning
• Product design trade dress requires secondary meaning for protection (Coca-Cola bottle shape)
  • Overall look of a product, shape of a guitar more difficult to protect
• Classification determines evidentiary burden and influences litigation strategy
• Borderline cases may have elements of both packaging and design requiring court determination