Because the modern marketplace is a crowded place, business leaders must think of memorable ways to market their products or services. In addition to generating a trademarked logo and slogan, it is often essential to create and formally protect trade dress. Trade dress is simply the packaging, decoration or styling that makes a product or service unique.
Trade dress infringement may not only cost a business the benefit of its trade dress, but the company may also lose both new and existing customers to competitors. Fortunately, it is possible to bring a legal action to protect trade dress. Proving infringement requires addressing three issues.
1. The functionality of the trade dress
U.S. trademark law does not protect trade dress that is functional, such as an ordinary box a company uses to hold the product it sells. Thus, to prove trade dress infringement, the claimant must show the trade dress is nonfunctional. That is, the trade dress must have some element that takes it beyond mere functionality.
2. The distinctiveness of the trade dress
For a successful infringement claim, the claimant must demonstrate the trade dress is inherently distinctive. Rather than being ordinary or basic, the trade dress must be fanciful, unique or unusual in some way.
3. Consumer confusion
Finally, there must be some risk consumers are likely to confuse the trade dress owner’s product or service with the infringer’s. Proof of consumer confusion may involve either showing customers may not understand the difference or may infer a connection between the two ventures.
If consumers cannot tell the difference between the products or services of two distinct businesses, the trade dress owner is likely to have damages. Filing an infringement claim may be the most effective way to protect a company’s interests.