What is a business’s trade dress?

| Jul 13, 2021 | Firm News

If you own a business, you have probably devoted a great deal of time to honing the product or service you offer. After all, if you do not have something worthwhile to sell, you are not likely to have many customers. How you package your product or market your service, though, is equally important to the success of your venture.

Trade dress is the overall appearance or feel of a product or service that distinguishes it from competitors. Decoration, packaging, furnishings, uniforms and other items may make up your company’s trade dress. To ensure you receive the full benefit of your business’s trade dress, you may want to pursue trademark protection.

What trade dress is protectable?

To qualify for trademark protection, your business’s trade dress must be inherently distinctive. That is, it must look and feel differently from the dress other companies use. It must also be nonfunctional. While you cannot obtain trademark protection for an ordinary jar, for example, a uniquely shaped jar that identifies your product may be protectable.

How do you prove infringement?

If you pursue trademark protection for your company’s trade dress, your competitors simply may choose not to misappropriate it. On the other hand, you may eventually have to file an infringement complaint. As the U.S. Patent and Trademark Office notes, to prevail with your cause of action, you must show another’s use is likely to cause consumer confusion or has already caused it.

Consumer confusion is bad for business, as your customers may not be able to tell the difference between your product or service and your competitors’. Ultimately, obtaining trademark protection for your company’s trade dress ensures you have the framework for challenging another business’s infringement if it ever arises.