What is Trade Dress Infringement?

Sometimes trademark infringement occurs when a competitor adopts the visual impression, or “look and feel” of a company’s packaging, the look of their restaurant, or the colors that are used in a retail space. This type of infringement, called “trade dress infringement” is a type of trademark infringement, and just as actionable as if the naughty infringer started using a brand name that was confusingly similar to that of a competitor. The real test, as in the more traditional notions of trademark infringement, is whether a consumer would be confused about the source of the goods or services. If the answer is “yes,” it infringes.

Trade dress infringement involves the copying of the visual characteristics of a company’s goods or services. For example, product packaging may give the consumer information about the source of a product. The way a restaurant decorates its properties, both interior and exterior, is a visual cue for the consumer about the provider of the restaurant services. In an earlier video, I talked about the distinctive trade dress of the Tiffany Blue packaging — which is also, incidentally,  protected by a trademark registration.

Recall that a trademark doesn’t have to be registered with the Patent and Trademark Office in order to be protected, and it’s the same for trade dress. The test is the same for unregistered trade dress infringements as it is for any other infringement: Would the infringement lead the ordinary consumer to believe that the competing products or services came from the same source? If so, then there is a trade dress infringement.

Often trade dress infringers are deliberately attempting to capitalize on the goodwill of the company being infringed, especially if the infringee’s trade dress is famous.

The Supreme Court has ruled on a few trademark conflicts over the years, and in one notable case, the Supremes ruled that “trade dress” can be “almost anything at all capable of carrying meaning”, and explicitly recognized as trade dress letters, numbers, shapes, colors or combinations of colors, scents, sounds, textures and any combination of those things. The total image and overall appearance of a company’s product or products is its trade dress.

If you’re creating a product or a service, it’s important that you come up with your own original trade dress. As tempting as it may be to try and play off of a famous brand’s look and feel, I urge you to invest in creating your own trade dress that is distinctively yours. Conjuring up the trade dress of another company — famous or not, but especially if the trade dress is famous! — is always a bad idea that could leave you open to a suit for trade dress infringement.

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