Trade dress is a subcategory of trademark rights. Both trademark and trade dress are types of intellectual property that identify a service or product and distinguish it from others.
Trade dress infringement happens when one company uses trade dress that is close enough to another’s that it causes confusion in the minds of buyers. In order to show that infringement occurs, the plaintiff needs to prove certain elements.
Trade dress definition
According to FindLaw, trade dress refers to the visual appearance and characteristics of a product, such as the color, shape, size, graphics, texture and selling techniques. Some examples of trade dress include the atmosphere in a restaurant, product configuration, trade show style, unique smell and catchphrase. Trade dress refers to the overall appearance, which may include individual elements used previously by others.
A company can register its trade dress with the United States Patent and Trademark Office. In order to receive protection, a trade dress must be distinctive and non-functional. A company does not have to register a trade dress, as there are protections under common law. However, registration helps prevent others from copying it.
Elements of a trade dress infringement claim
The person or company bringing an infringement claim bears the burden of proof. According to the United States Courts for the Ninth Circuit, the plaintiff must prove ownership of the trade dress and show that it is distinctive and non-functional. The plaintiff must prove that it began using the trade dress prior to the defendant and that the defendant’s use of the trade dress would cause confusion among consumers.
In all intellectual property disputes, strong evidence can be essential to winning a case. Careful documentation of trade dress elements can help prove that an infringement occurred and provide a defense against trade dress claims from competitors.