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When protecting IP, do not forget about trade dress

On Behalf of | Jun 22, 2020 | Intellectual Property |

Most inventors, entertainers, musicians and entrepreneurs recognize the importance of protecting intellectual property. After all, a tremendous amount of hard work goes into developing ideas. If business owners do not take steps to protect trade dress, though, they may be missing the mark. 

A company’s logo and product may be eligible for trademark, patent or copyright protection. The marketable look or feel of the product, collectively called trade dress, is also trademarkable. Accordingly, if a business uses specific décor or packaging to identify its product or service, its owners should probably pursue trademark protection. 

The Lanham Act 

If a company has an identifiable product design or a unique way of presenting its product or services, common law affords protection. That is, the creator of the trade dress has a claim to exclusive ownership under common law. 

For greater certainty, rather than relying on common law, a business’s leaders may choose to take advantage of the Lanham Act. This 1946 law allows for trade dress protection through the U.S. Patent and Trademark Office. 

Inherently distinctive trade dress 

Seeking a trademark for trade dress is essentially the same as trademarking a brand name, logo or slogan. That is, the trade dress must be inherently distinctive to qualify for registration with the U.S. PTO. 

For trade dress to be inherently distinctive, it must be sufficiently unusual or memorable to link the trade dress to a product or service. The trade dress also must be conceptionally different than what the company sells to customers. 

Nonfunctional trade dress 

For federal trade dress protection, business owners must meet one additional requirement. Specifically, the company’s trade dress must be nonfunctional. If a company sells tacos, for example, the trade dress may be brightly colored tables or patterned flooring. These items are nonfunctional, as they are not an integral part of tacos. Rather, they help customers distinguish the company and its product from competitors. 

Because business leaders typically devote a significant amount of time, energy and money in creating their inherently distinctive and nonfunctional trade dress, seeking trademark protection is often an effective way to protect business interests. 



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