Trade Dress

• Author: Jeffrey Lehman, Shirelle Phelps

Page 66

A product's physical appearance, including its size, shape, color, design, and texture.

Page 67

In addition to a product's physical appearance, trade dress may also refer to the manner in which a product is packaged, wrapped, labeled, presented, promoted, or advertised, including the use of distinctive graphics, configurations, and marketing strategies. In intellectual property law, a CAUSE OF ACTION for trade dress infringement may arise when the trade dress of two businesses is sufficiently similar to cause confusion among consumers. In such situations the business with the more established or recognizable trade dress will ordinarily prevail. Two remedies are available for trade dress infringement: injunctive relief (a court order restraining one party from infringing on another's trade dress) and money damages (compensation for any losses suffered by an injured business).

Like TRADEMARKS, trade dress is regulated by the law of UNFAIR COMPETITION. At the federal level, trade dress infringement is governed primarily by the Lanham Trademark Act (15 U.S.C.A. § 1051 et seq.); at the state level, it is governed by similar INTELLECTUAL PROPERTY statutes and various common-law doctrines. Both state and federal laws prohibit businesses from duplicating, imitating, or appropriating a competitor's trade dress in order to pass off their merchandise to unwary consumers.

To establish a claim for trade dress infringement, a company must demonstrate the distinctiveness of its product's appearance. Trade dress will not receive protection from infringement unless it is unique, unusual, or widely recognized by the public. Courts have found a variety of trade dress to be distinctive, including magazine cover formats, greeting card arrangements, waitress uniform stitching, luggage designs, linen patterns, cereal configurations, and the interior and exterior features of commercial establishments. In certain contexts courts may find that distinctive color combinations are protected from infringement, as when a federal court found the silver, blue, and white foiled wrapping in which Klondike ice cream bars are packaged to be part of an identifiable trade dress (AmBrit v. Kraft, 812 F.2d 1531 [11th Cir. 1986]).

Goods that are packaged or promoted in an ordinary, unremarkable, or generic fashion normally receive no legal protection under the law of trade dress. For example, containers shaped like rockets and bombs are...