13.1.2.2.5 Validity — Generic Trademark/Trade Dress is a type of validity test that determines whether a mark or design has become generic or generalized, and is therefore no longer legally protected under trademark law. Generic marks or designs are those which have become so popular or widely used that they have lost their distinctiveness and can no longer be distinguished from other products or services. Examples of generic trademarks or trade dress include words or designs that are so common they can no longer be associated with a particular product or service, such as "aspirin" or the red and white checkered design associated with picnic tables. There are two types of generic trademark/trade dress validity tests: the primary use test and the public perception test. The primary use test evaluates whether the mark or design is still in use by the originator, while the public perception test considers whether the public associates the mark or design with a particular source.
13.1.2.2.5 Validity - Generic Trademark/Trade Dress
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FAQ
Trade dress can be protected through common law rights. However, the Lanham Act also protects trade dress and allows it to be registered with the U.S. Patent and Trademark Office (USPTO) as a trademark. Generally, an application to register trade dress must include all the same content as a trademark application.
Trade dress is a type of a trademark. Therefore, it follows that if trade dress is not registered, it is still protectable under the Lanham Act, as long as the trade dress owner can show distinctiveness and that it is nonfunctional.
What is a trademark, and what is a trade dress? A trademark is a recognizable identifier, such as words, designs, logos or colors associated with your business, while trade dress encompasses the visual appearance of your goods or services and packaging.
Trade dress is a type of a trademark. Therefore, it follows that if trade dress is not registered, it is still protectable under the Lanham Act, as long as the trade dress owner can show distinctiveness and that it is nonfunctional.
Trade dress is a trademark law that protects the look and feel of a product and distinguishes it from other similar products. This can include but is not limited to, identifying features such as shape, color, and design of a product or a product's packaging.
Trade dress can be protected through common law rights. However, the Lanham Act also protects trade dress and allows it to be registered with the U.S. Patent and Trademark Office (USPTO) as a trademark. Generally, an application to register trade dress must include all the same content as a trademark application.
Federal trade dress registrations last for 10 years and can be renewed for another 10 years upon expiring. Companies can also register their trade dress on a state level. The average cost of a trade dress registration is $673.
In general terms, trade dress is functional, and cannot serve as a trademark, if a feature of that trade dress is "essential to the use or purpose of the article or if it affects the cost or quality of the article." TrafFix Devices, Inc. v. Mktg.