TRADE DRESS · TRADEMARKS
Journal
Using Trade Dress Protection to Safeguard Product Packaging That Your Customers Love
DEREK FAHEY, ESQ.
Fun and distinctive product packaging can increase sales because it creates a positive impression and makes customers want to purchase the product. Trade dress protection, a component of trademark law, provides an effective tool for protecting unique product packaging.
What Is Trade Dress and How Does It Work?
Trade dress refers to the visual appearance of product packaging that signifies the source of the product to consumers. It can protect the “look and feel” of packaging, including its shape, color scheme, graphics, and overall design.
Well-known examples include the shape of a Coca-Cola bottle, the Tiffany blue box, the Clase Azul bottle and bell top, Reese’s orange-and-yellow packaging, the red wax seal on Maker’s Mark bottles, and Apple’s minimalist product packaging.
To qualify for trade dress protection, packaging generally must be distinctive and non-functional. It must either be inherently distinctive or have acquired distinctiveness through consumer recognition, and the elements being protected cannot serve a primarily practical function.
What are The Benefits of Trade Dress Protection?
- Exclusive rights: Protection can prevent competitors from using confusingly similar packaging.
- Brand recognition: Distinctive packaging can become closely associated with a brand.
- Competitive advantage: Unique packaging differentiates a product in the marketplace.
- Legal recourse: Trade dress rights can support enforcement against copying or imitation.
How Can You Obtain Trade Dress Protection?
- Design unique packaging. Build a memorable design that aligns with the brand identity.
- Evaluate functionality. Confirm that the elements being protected are decorative or source-identifying rather than functional.
- Establish distinctiveness. Consistent use, marketing, and customer recognition can help show acquired distinctiveness.
- Apply for registration. A USPTO application should include detailed descriptions and visual representations of the packaging.
- Monitor and enforce. Businesses should document consumer confusion and respond promptly to infringing designs.
Practical Considerations
Businesses should consider trade dress early, conduct clearance searches before finalizing packaging, use protected packaging consistently, and seek professional guidance when preparing an application or enforcement strategy.
Conclusion
Trade dress protection can safeguard unique product packaging, strengthen brand identity, foster consumer trust, and preserve a competitive position in the market.
