Trade dress consists of a combination of various elements that are used to promote a identifiable product or service. For a product, trade dress may be the shape, size, design, and packaging of the product itself such as a Coca Cola bottle. For a service, it may be the décor or environment in which the service is provided—for instance, the distinctive décor of the Hard Rock Café restaurant chain. Trade dress makes the presentation of a product or service uniquely distinctive. Other common elements of trade dress may include:
- Building exteriors and interiors
- Menu Items and Signature dishes
- Product size and product shape
- Interior layout and furniture
The designs, shapes or other aspects of the product that are created strictly to promote the product or shape are protectible trade dress. Those aspects of the business that are included as its elements must be used uniformly and consistently throughout all advertising, franchising and licensing to create distinctiveness.
Determining if you have a protectible trade dress must be analyzed because some trade dress can not be protected if the shapes, designs, colors or materials that make up the trade dress serve a function outside of creating brand recognition.
If you have a product or service, questions to consider as to whether you have a protectible trade dress are:
- Is the trade dress used to primarily make the product or service unique and easy to identify? Or,
- Is the trade dress essential to the use or purpose of the product or service?
Our team is able to help you identify whether you have a protectible trade dress, and, if so, can protect your trade dress further by filing a trademark application for the trade dress.
Oppenheim Law | Trademark Attorneys
2500 Weston Rd #209
Fort Lauderdale, FL 33331