What is a trade dress? Is this a new fashion trend that Miley Cyrus or Rihanna started?
Not exactly. Trade dress law is a subset of trademark law that originally included only the packaging or “dressing” of a product, but in recent years has been expanded to encompass the design of a product. It is the overall look and feel of a product or service that allows the average consumer to identify the source of the product or service. It includes the design or configuration of a product, the labeling and packaging of goods, and the décor or environment in which services are provided. Trade dress can also include features such as size, shape, color or color combinations, texture, or graphics so long as such elements are not functional.
Here are a few examples:
Hermes “Kelly” Bag
U.S. Trademark Reg. No. 1,806,107
Louboutin “Red Sole”
U.S. Trademark Reg. No. 3,376,197
Burberry “Plaid Pattern”
U.S. Trademark Reg. No. 3,529,814
So do I have a trade dress to register?
It depends. A trade dress must be 1) distinctive and 2) nonfunctional.
To qualify as distinctive, a trade dress must be recognizable to consumers as source identifying. In other words, a trade dress is distinctive if an average customer recognizes your brand by simply seeing one of your products. For example, if I walked down the street in a standard black trench coat and a pair of black pumps, the average consumer who walks by me would not likely identify Christian Louboutin and Burberry as the source of the coat and pumps. This is because fashion designs are not inherently distinctive, and numerous fashion houses have replicated the designs of a standard trench coat and black pump countless times. It is only when the average consumer sees the plaid pattern on my popped collar and the flash of red on my pumps’ soles, as a whole unit of the coat and pumps, will she be able to identify Christian Louboutin and Burberry as the source of the coat and pumps. Although the distinctive requirement is more difficult to achieve, fashion designs can acquire distinctiveness over time with consistent advertising and promoting.
To qualify as nonfunctional, a trade dress must not be essential to the use or purpose of the product or service and not affect the cost or quality of the product or service. A nonfunctional design feature includes a slogan, a symbol, an ornamental feature, a distinctive shape, or some feature that is intended to remind a consumer of a brand. For example, a Coca-Cola bottle’s function is to hold the Coca-Cola liquid. However, the bottle’s shape and design are nonfunctional because it does not affect the bottle’s ability to hold the liquid.
So, if you can prove that your trade dress has achieved distinctiveness and is nonfunctional, protect it by registering it with the United States Patent and Trademark Office. The advantages of a registered trade dress are similar to a registered trademark. More information can be found here: Don’t Get Caught With Your Pants Down: Cover Your Assets By Registering Your Brand Name.