Trade dress refers to the design or packaging of a product which serves to identify the product's source.
To be entitled to trademark protection, a significant number of consumers must perceive the trade dress as denoting the product of a particular manufacturer, rather than being arbitrary or merely decorative, after the trade dress has been used in the market. In trademark law, this notion of acquired distinctiveness is termed "secondary meaning."
Trademark rights in trade dress may arise under state law as soon as the product is used in commerce. However, trade dress may be registered with the U.S. Patent and Trademark Office (USPTO), a step that affords significant substantive and procedural advantages. The trade dress owner may prevent others from using a similar product appearance that creates a likelihood of confusion as to the source or sponsorship of the associated goods. These rights persist so long as the trade dress continues to be used and retains its distinctiveness.
- ↑ Shire US Inc. v. Barr Labs., Inc., 329 F.3d 348, 353 (3d Cir. 2003) (full-text). See also Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 209, 54 U.S.P.Q.2d (BNA) 1065 (2000) (full-text) (“The breadth of the definition of marks registrable under [the Lanham Act] . . . has been held to embrace not just word marks, such as ‘Nike,’ and symbol marks, such as Nike's ‘swoosh’ symbol, but also ‘trade dress’ — a category that originally included only the packaging, or ‘dressing,’ of a product, but in recent years has been expanded by many courts of appeals to encompass the design of a product.”).
- ↑ Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209 (2000).
- ↑ Ingrida Karins Berzins, "The Emerging Circuit Split Over Secondary Meaning in Trade Dress Law," 152 Univ. Penn. L. Rev. 1661 (2004).
- ↑ 15 U.S.C. §1051.
- ↑ See Rest. (Third) of Unfair Competition §20.
- ↑ Id. at §30.