TM  row of decorative pyramidal boxes

column of decorative pyramidal boxes
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Trade Dress

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Trade Dress

Trade dress is a concept that arose in business fairness cases and is primarily applicable to products or packaging. You can actually take someone to court if they try to present products that "look" like yours but fall short of fraudulently representing their product as yours. There are, of course, rules for when trade dress is applicable. First is that the appearance features that you want to count as your trade dress must be non-functional. In other words they must not simply be there to do a job that all other similar products might have as the same appearance to do the same job. Think "decorative" or "ornamental" as might be suitable for a design patent rather than "utility" or "function" as would apply to a utility patent.

Further, in addition to being decorative, you must be able to convince a judge or jury that your style has acquired the secondary meaning in the public's mind of identifying goods looking like that that they are made by you or that there is substantial likelihood of confusion in the minds, not of casual observers but, of bona fide prospective buyers of your product. The red and white wave of The Coca-Cola Company might confuse anybody if it appeared on packaging for a household product but an outline of the state of Texas would likely only be confusing to electronics or electronics components buyers so it's appearance on spaghetti packages would not be confusing.

Don't adopt the "trade dress" of some other manufacturer as part of your packaging or you could get in trouble. I wouldn't put Jim's-Cola in a Coke style bottle or Jim's Film in a yellow box or do the current "hot" thing of cheap water softener salt sellers and copy Morton's yellow bag. If you have to "sort of" deceive someone to get them to buy your product are you all that sure you want to be selling that particular product anyway?

It is, however, sometimes important to differentiate your product through packaging (think L'EGGS pantyhose) but be sure your channel will accept that. In the case of L'eggs, the manufacturer initially did the stocking (no pun intended?) in their own custom racks in the store, in other words, all handling except at the cash register so the retailer and their stocking clerks didn't have to do anything different.

Have your own distinctive "trade dress' and voila, you actually have something possibly trademarkable and perhaps visual arts copyrightable and you may be way ahead of the game opting for registering for those protections. Trade dress, like trademarks when you keep the registration active and the fees paid, do not expire but you can lose your rights by allowing the distinctiveness to you to be diluted. It usually does not take a court battle to defend your rights, just a strongly worded letter asserting your rights, evidence of those rights, a legal opinion of violation of those rights, and the credible belief in your opponents mind that the fight would not be worth it.


© Copyright 2002-2007 James E. White, All Rights Reserved

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