15.12 Infringement-Elements-Validity-Trade Dress-Non-Functionality Requirement
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FAQ
Trade dress is protected under trademark law, so the Lanham (Trademark) Act applies whether you have a registered or an unregistered mark. In fact, the law makes no distinction between a trademark based on a word (such as the name of your brand or product) and a trademark based on something visual (trade dress).
Trade Dress contemplates the general appearance of a product including not only the design of the product but also its packaging. Color, texture, shape, scent, or even flavor can all be components of trade dress.
Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another.
The Lanham Act protects trade dress if it serves the same source-identifying function as a trademark. It is possible to register trade dress as a trademark, but for practical reasons most trade dress and product configurations are protected without registration under 15 U.S.C. § 1125(a).
Trade dress is generally protected through common law rights, but like with any other trademark products, it can be registered for legal protection in federal court should your product be infringed on. Such as with other trademark products, registration occurs through the U.S. Patent and Trademark Office (USPTO).
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.
Trade Dress Infringement: Everything you Need to Know The strength or distinctiveness of the trade dress. Defendant's intent to copy and profit off plaintiff's reputation and goodwill. Products' similarity. Evidence of actual confusion. Degree of care exercised by buyers. The area, manner, and degree of concurrent use.
Elements of a Trade Dress Infringement Claim That evidence must prove all three of the following: That the plaintiff owns protectable rights in the trade dress, which must be a) inherently distinctive or have taken on secondary meaning, and b) not functional.
