Trademarks and trade dress are both legally protected under U.S. trademark laws. Both serve the “trademark function” of allowing consumers to identify, with a glance, the commercial source of some product or service. Both must be unique, and both can be protected from infringement by those using the same or a confusingly similar trademark or trade dress. Both can be registered with the U.S. Trademark Office (although trade dress is comparatively more difficult to register).

Trademarks tend to be small and “narrow” in form and format and combine more simple elements like text, font, lettering style, colors, and color/artistic combinations. Typical trademarks are:

• Logo
• Symbols
• Graphic designs
• Images
• Words
• Phrases

By contrast, trade dress is more complex and embraces the overall visual and tactile “appearance” of the product or the location in which a service is provided. Think in terms of how the overall product/service “presents itself.” Trade dress can also be much larger than a trademark, including the shape/design of a building or the design, ambiance, and “feel” of the interior of a business. Design elements for trade dress can include:

• Shape of the product, building, interior, etc.
• Colors and patterns
• Texture
• Size
• Three-dimensional configurations and combinations
• Packaging — for example, shape, materials, coloring, and labeling
• Decor elements such as placement of furnishing, fixtures, products, etc.

One of the most famous registered trade dress is the shape and design elements of the Coca-Cola bottle. When consumers see a bottle with that particular shape and a red label, consumers tend to think of the Coca-Cola soft drink. Other examples include McDonald’s Happy Meal Box, the interior design of Apple stores, and the color scheme of Subway restaurants.

As noted, trade dress can be comparatively more difficult to register with the U.S. Trademark Office. This is because trade dress must meet all of the standard requirements for registration, including use in commerce, uniqueness, function as a trademark, distinctiveness, etc. However, trade dress must meet another requirement: the trade dress CANNOT be functional in any manner. In common terms, functionality asks whether the product functions or “works” better in that particular trade dress. For example, with shape-related trade dress, does the shape make the product — such as a bottle — function better, like making it easier to grip or easier fill or empty the contents, etc. Color elements can also have functionality. For example, color may affect light and heat absorption, which might impact the product, its use, its longevity, etc.

Another aspect of functionality is whether the trade dress impacts the manufacturing or production of the product. If various trade dress elements make manufacture easier or less expensive, then the trade dress will be considered functional. As such, that particular trade dress will be denied registration.

Another aspect of functionality is whether other design options are available. If the product will only function in that exact shape/configuration, then the trade dress is functional.

Contact The Trademark Attorneys At Revision Legal For more information, contact the experienced Trademark Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.