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How to Improve Product Design Using Trade Dress


Trade dress consists of the unique, non-functional, elements used to promote a product or service. It may also include features such as size, shape, color, color combinations, textures, graphics, or even particular sales techniques. 

Trade dress is within the family of trademark. It is, however, not as well-known as a trademark because of the changing legal standards to acquire and maintain such beneficial federal protection. A trademark is any word, name, symbol, or device or any combination used to identify and distinguish goods or services from those manufactured or sold by others and to indicate the source of the goods.  

Federal law is violated when someone uses a trademark (or trade dress) of another that creates confusion among customers. 

Trade dress encompasses the total image and impression created by a product. While trademark prevents others from copying the name of the good or service, trade dress prevents copying the appearance.

Trade dress can be registered as a trademark with the United States Patent and Trademark Office and is thereby protected under §32 of the Lanham Act (15 U.S.C. §1114).  Unregistered trade dress can also be protected – but with significant more proofs – under §43(a) of the Lanham Act (15 U.S.C. §1125). 

Trade dress must be:

  1. inherently distinctive or has acquired secondary meaning; and
  2. is non-functional.

Inherently distinctive

Inherently distinctive means that it “must be unusual and memorable, conceptually separable from the product, and likely to serve primarily as a designator of origin of the product.” Duraco Products Inc. v Joy Plastic Enterprises Ltd., 40 F.3d 1431 (3d Cir. 1994). In a case of unregistered trade dress under §43(a) of the Lanham Act, “a product’s design is distinctive, and therefore protectable, only upon a showing of secondary meaning.” Wal-Mart, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 215 (2000). Clothing products are generally not inherently distinctive and must acquire distinctiveness through secondary meaning, such as sales and advertising. See id.

Secondary meaning

If the trade dress is not inherently distinctive a company can acquire secondary meaning under §43(a) of the Lanham Actif it can show “in the minds of the public, the primary significance of a product feature…is to identify the source of the product rather than the product itself.” Inwood Laboratories, Inc. v Ives Laboratories, Inc., 456 U.S. 844 (1982). Intentional copying by a competitor may also be evidentiary proof to help establish secondary meaning.  Perfect Fit Industries, v Acme Quilting Co., 618 F.2d 950 (2ndCir. 1980).


Trade dress elements must be non-functional to be protected. The Supreme Court stated that “in general terms, a product feature is functional [and not protected by trade dress] if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.” See Inwood, supra at 851. To establish non-functionality of the design feature, a court may consider its esthetic appeal.

Learn more about how trade dress can improve your product, see examples of registered trade dress, see examples of trade dress enforcement and learn how the federal law can help protect your products. Read the full article here.

Categories: Fashion, Intellectual Property

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