Arthur R. Lehman, L.L.C.

What is "trade dress" under intellectual property law?

For businesses in New York and across the country, there's a constant attempt to make a product that will not only stand out functionally, but aesthetically as well. It's long been said that people eat with their eyes, and if they're attracted to an item or product visually they might be more interested in investing their hard-earned money on it. This is where the sometimes muddled issues of a trademark dispute and copyright infringement entangle many to the point where they're violating the law. It's important to know how product design and product packaging differ and that any kind of dispute regarding intellectual property can lead to litigation.

The design of a product frequently becomes muddled when there are patents and trademarks involved. If a product has what the U.S. Patent and Trademark Office sees as original, new and ornamental design, there will be a patent issued. This can be hard to enforce if there is a dispute. However, many prefer to trademark the way the product looks. This is an example of its "trade dress." This has to do with its packaging and its appearance. The package isn't just about the box that a product is in. There might be certain designs, phrasings, decorations and more. If the product is distinctive and is identifiable versus competitors, then there is the opportunity to have a trade dress attached to it.

A product package is able to be trademarked, but a design isn't. It must be shown that the design has a secondary definition. If customers begin to attach a design to a certain company - think the Nike "swoosh" - then there is the opportunity to trademark it.

Since it's so hard to establish a foothold in any marketplace no matter how innovative the product or packaging, the last thing a company wants to do is to have another company or individual arrive and try to jump on a success and siphon off customers through similar packaging.

Source: smallbusiness.chron.com, "Difference Between Product Design and Product Packaging in Trademark Law," Fraser Sherman, accessed on Mar. 3, 2015

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