Trade Dress: Protecting a Product's Look and Packaging

Trademarks are not limited to words and logos. Trade dress protects the overall visual appearance of a product or its packaging when that appearance identifies the source of the goods. The shape of a classic Coca-Cola bottle and the distinctive décor of a restaurant chain are textbook examples — protectable trade dress, not just brand names.

What trade dress covers

Trade dress can include product packaging, product design or configuration, color schemes, and the "look and feel" of a business's presentation. Like any trademark, it functions to tell consumers who makes or offers something.

The two requirements

To be protectable, trade dress must be both distinctive and non-functional:

• Distinctiveness. The appearance must identify a source. Here the law draws a critical line. In Two Pesos v. Taco Cabana (1992), the Supreme Court held that packaging trade dress can be inherently distinctive. But in Wal-Mart Stores v. Samara Brothers (2000), the Court held that product design is never inherently distinctive — it always requires proof of secondary meaning (that consumers have come to associate the design with a single source).
• Non-functionality. Trade dress cannot protect features that are functional. In TrafFix Devices v. Marketing Displays (2001), the Supreme Court held that a feature is functional — and thus unprotectable — if it is essential to the use or purpose of the article or affects its cost or quality. Functional features belong to patent law, not trademark.

Why the functionality bar exists

The non-functionality rule keeps trademark law from granting a perpetual monopoly over useful product features, which is the province of time-limited patents. Trade dress protects how a product looks as a brand signal — not how it works.

The takeaway

Trade dress extends brand protection to appearance, but only when that appearance is distinctive and non-functional. It is one of the more nuanced corners of trademark law and a natural extension of the fundamentals in the Wysebridge trademark guide.