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Trade Dress, What is It?

In an earlier blog entitled “Trademark infringement” I referred to a lawsuit between two energy drink manufactures selling Monster Energy Drink where the cans looked identical. The filed lawsuit complained, among other things, one of the companies was infringing on the others trade dress. They stated in their complaint that by choosing a similar color scheme on their drink containers, “Defendants have infringed Hansen’s MONSTER trade dress in interstate commerce in connection with Defendants’ making, using, promoting, advertising, selling, and/or offering to sell its MONSTER ENERGY SHOT energy drink.”

Trade dress refers to characteristics of the visual appearance of a product or its packaging that signifies the source of the product to consumers. Like the appearance of the Coke® bottle. Trade dress may be registered as a trademark or service mark with the U.S. Patent and Trademark Office (PTO). But if someone has not registered their trade dress it may nonetheless be protectable under federal and state unfair competition laws.

The United States Supreme Court has heard a couple trade dress cases that give some light of what protection is available for protecting a product’s appearance. In one case the Court held that inherently distinctive trade dress is protectable without proof of secondary meaning. Secondary meaning means that a descriptive mark has come to be associated with a particular source of goods or services. That is a topic for a future blog entry.

In another case the court held that The Lanham [Trademark] Act permits registration of a trademark that consists, purely and simply, of a color. It may be protected as trade dress if it serves the same source-identifying function as a trademark. There are three primary issues in the trade dress area. The first is whether the trade dress is de jure "functional." To be nonfunctional it cannot affect a product’s cost, quality, or a manufacturer’s ability to effectively compete in a non-reputational way. If it is functional then the Trademark Office will say it should be patented and not get trademark protection. The problem with this is patents are only good for 20 years where trademarks, if renewed, can go on indefinitely. The second question is whether the trade dress is "distinctive", either inherently or because it has acquired secondary meaning (as defined earlier). If the answer is yes, the third issue in an inter partes (Latin for “between parties”) dispute is whether there is a likelihood of confusion between the parties' trade dress.

Another example involves the comparison between Duracell® and Energizer® batteries which both utilize trade dress. Duracell’s trade dress is the “copper top” with the trademark “Duracell®” where Energizer’s trade dress is silver batteries with the trademark “Energizer®.”

If you have any questions about trade dress protection you should contact a trademark attorney.

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