Don’t let your trade dress go unprotected

On Behalf of | Jun 17, 2020 | Intellectual Property, Trademark & Copyright

There’s no doubt that intellectual property can set your business apart from your competitors. However, intellectual property is often only as valuable as it is policed. If you don’t catch a trademark infringer, for example, then you won’t be able to stop them and prevent them from damaging your image. So, while you need to do your best to create distinctive trademarks and copyright and keep tabs on it, you also need to be aware of other protections that might be available to you.

One often overlooked intellectual property protection is trade dress. Simply put, trade dress is a product or service’s image or overall appearance that makes it unique and source-identifying. It can include number of different characteristics. The shape of a bottle, a color, even the layout of a restaurant interior may qualify as trade dress if it is distinctive enough. If the trade dress is question is too generic, then it won’t be given protection under the law.

There’s  another requirement before trade dress protection can be obtained: non-functionality. Therefore, if the dress sought to be protected is necessary for the product or service to function, then it can’t be protected because that would essentially give the trade dress owner a monopoly. This isn’t to say that the trade dress can’t be functional. Instead, the analysis turns on whether there is another way for the product or service to function. If so, then protection may be garnered so long as the trade dress in question is distinctive enough as a source-identifying characteristic.

Unlike trademarks and copyrights, trade dress can’t be registered for protection. This means that there’s a greater burden on you to make sure you are protecting it to the best of your ability. Therefore, if you think that the layout of your business, the color or shape of a product, or the overall appearance of your goods or service deserve protection against those who are trying to mimic you, then it might be time to speak with an attorney who is experienced in intellectual property law as it pertains to businesses.