What Is Trade Dress?

What is trade dress?

Trade dress is the overall commercial image of a product or its packaging that signals to consumers where it comes from. It can include a product's shape, color scheme, graphics, packaging, or even the layout and décor of a store or restaurant — classic examples include the contour shape of a Coca-Cola bottle and the distinctive décor of a themed restaurant. Like word marks and logos, trade dress is part of the broader trademark and intellectual property system the USPTO administers to support brand protection, so Secure Mark USA can help you federally register it when it functions as a genuine source identifier.

What makes trade dress protectable?

Trade dress is protectable only when it is both distinctive and non-functional. Product packaging — such as a uniquely designed box or bottle — can be inherently distinctive and protected right away, but product design or configuration (the shape of the product itself) is never inherently distinctive and must acquire distinctiveness, or secondary meaning, through use before it can be registered. Trade dress also cannot be functional: if a feature is essential to how the product works or affects its cost or quality, it cannot be protected as trade dress, because that protection is the role of patents rather than trademarks.

How do you register trade dress with the USPTO?

You register trade dress by filing a trademark application with the USPTO in the class that matches your goods or services, using a drawing and description rather than a standard word or logo. Step by step: (1) Identify exactly which visual elements make up your trade dress. (2) Confirm those elements are non-functional and distinctive. (3) Choose the correct class — restaurant décor is filed in Class 43, while product packaging is filed in the class of the product inside. (4) Prepare a drawing that shows the claimed features, often with non-claimed parts drawn in dotted lines, plus a written description. (5) If your trade dress is product design, gather evidence of acquired distinctiveness such as sales figures, advertising, and consumer recognition. (6) File and respond to any Office Action. Because U.S. trademark rights are largely first-to-file, registering early strengthens your position.

Key takeaways

• Trade dress protects the overall look and feel of a product, its packaging, or a business's décor.
• To be protected, trade dress must be both distinctive and non-functional.
• Product design must acquire distinctiveness before registering; packaging can be inherently distinctive.
• Trade dress is filed with the USPTO in the class of the underlying goods or services.
• Filing through Secure Mark USA starts from $99 plus the $350-per-class government fee.

Frequently asked questions