Should We be Watching for the New “Trade Dress” in the Fall Fashion Shows?

Not really.  Trademark law encompasses the subpart known as “trade dress.” When an average consumer can identify the source of a good or service by its look and feel, then this may be its trade dress.  The design or configuration of a product, the labeling and packaging of goods, and the décor or environment where services are provided can all be protected as trade dress.  Trade dress features must be distinctive and not functional. Examples include the shape of a Coca-Cola bottle, the red color on the sole of a Christian Louboutin pump, or the image of a horse-mounted polo player on a bottle of cologne, duffle bag, or shirt from Ralph Lauren.  Each of these examples are not functional to the item, but are distinctive in how they identify the source of the goods.

When a company’s trade dress has achieved distinctiveness and is nonfunctional, it should be protected by registering it with the United States Patent and Trademark Office.  The advantages of a registered trade dress include, among other things, public notice of ownership, listing in the USPTO database, and potential to recover treble damages, attorney fees and possibly statutory damages for willful infringement.

By Greg Marcum

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