Trade dress

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Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.[1][2] Trade dress is a form of intellectual property.

Contents

United States

In the U.S., like trademarks, a product’s trade dress is legally protected by the Lanham Act, the federal statute which regulates trademarks and trade dress.[3] Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another.[4] For example, the shape, color, and arrangement of the materials of a children's line of clothing can be protectable trade dress (though, the design of the dress itself is not protected),[5] as can the design of a magazine cover,[6] the appearance and décor of a chain of Mexican-style restaurants,[7] and a method of displaying wine bottles in a wine shop.[8]

Statutory source

Under section 43(a) of the Lanham Act a product's trade dress can be protected without formal registration with the PTO.[9] In relevant part, section 43(a) states the following:

This statute allows the owner of a particular trade dress to sue an infringer (a person or entity who illegally copies that trade dress) for violating section 43(a) without registering that trade dress with any formal agency or system (unlike the registration and application requirements for enforcing other forms of intellectual property, such as patents). It is commonly seen as providing “federal common law” protection for trade dress (and trademarks).[11]

Formal registration

Trade dress may be registered with the United States Patent and Trademark Office (PTO) in either the Principal Register or the Supplemental Register.[12] Although registration is not required for legal protection, registration offers several advantages. In the Principal Register, a registrant gains nationwide constructive use and constructive notice, which prevent others from using or registering that registrant’s trade dress (without contesting the registration).[13] Further, a registrant in the Principal Register gains incontestable status after five years, which eliminates many of the ways for another party to challenge the registration.[14] Registration under the Supplemental Register allows the registrant to protect its trade dress in foreign countries, although the protections are much more limited than protections under the Principal Register in the U.S.[15]

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