Arthur R. Lehman, L.L.C.

What is trade dress and how does federal law protect it?

Many New York companies have trademarks that help define the company's identity to consumers and the public. In addition to trademarks, many companies also have a unique trade dress that also helps to define the company. One may wonder: What is trade dress and how is it protected?

Trade dress is a legal term that describes a product's total image or overall appearance. Historically, trade dress referred to the way a product was packaged, with elements such as a label and a package display card. Today, trade dress can also include features, including shape, size, texture, graphics, color and color combinations. It can also include certain sales techniques.

Trade dress is protected under federal intellectual property law. A company's trade dress does not necessarily have to be registered to enjoy protection under federal law, but companies do have the option to register trade dress under the Lanham Act.

If a company does not register its trade dress, it will be protected if the trade dress is both distinctive and non-functional. If a feature is not distinctive to the company, or, if the feature has a function that is essential to the use or purpose of the article or that affects the cost or quality of the article, the feature is not protected trade dress under federal law.

If a company wishes to register its trade dress, it should be aware that the requirements for registration of trade dress are the same as for registration of traditional trademarks. There may be significant costs associated with registering trade dress. If a business owner believes their registered or unregistered trade dress protection is being infringed, they have the option of consulting with an intellectual property attorney for guidance.

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