What is trade dress?

Trade dress refers to the total image and overall appearance of a product or service, or the totality of the elements, and may include features such as size, shape, color or color combinations, texture, and graphics. Items typically eligible for trade dress protection are product designs, product packaging, and the appearance and decor of a service business. For trade dress to be protectable under trademark law, the design must be non-functional, distinctive, and identify the source of the goods or services. A design is functional if it is essential to the use or purpose of the article or if it affects the cost or quality of the article. The functionality doctrine acts as safeguard against the impermissible extension of patent monopoly by invoking trademark protection. 

Additionally, trade dress must be distinctive to identify the source of the good or service. Trade dress can be inherently distinctive or acquire distinctiveness through secondary meaning. Most trade dress is capable of being inherently distinctive but courts require proof of secondary meaning of product designs and single color symbols. 

Examples of trade dress:

The shape of the contoured Coca-Cola bottle
The design of Apple’s iPhone
Maker’s Mark’s red dripping wax bottle sealant
The design of certain Nike shoes
The color "brown" for UPS services

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