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Trade dress is a valuable corporate asset that needs protection

On Behalf of | Jan 5, 2021 | Business Law |

Competing in an ever-crowded marketplace requires both quality product or service and effective marketing. Savvy business owners understand the importance of packaging their offerings in an easily identifiable or iconic way. 

Trade dress is everything that makes a company’s product or service look a certain way. Because business leaders often devote a considerable amount of time, money and effort into creating compelling trade dress, protecting it from infringement is essential. After all, trade dress is a valuable corporate asset. 

Registering for trademark protection

Like a company’s logo or slogan, trade dress is trademarkable. To register trade dress with the U.S. Patent and Trademark Office, it must be both inherently distinctive and nonfunctional. 

For trade dress to be inherently distinctive, it must be unusual and memorable. It should also differ conceptually from the product or service the company offers. Likewise, to secure a trademark registration, trade dress must not be an integral part of the product or service. 

Using unregistered trade dress

While a trademark registration offers a variety of legal protections, it is not necessary to register trade dress to secure ownership of it. Simply using trade dress may put others on notice of its ownership, especially if the dress has acquired a secondary meaning. 

Asserting trademark infringement

If another organization is using the same or similar trade dress, the trademark owner may assert infringement. An infringement lawsuit may require the junior user to stop using the trade dress and pay financial damages. 

For a successful infringement claim, the claiming company must show consumer confusion. That is, consumers must have difficulty distinguishing between the two products or services because of the same or similar trade dress.