Where did you get that trade dress?


While many businesses value and protect their trademarks, fewer identify and protect the trade dress of their products.

Trade dress law is a first cousin of trademark law. Trade dress refers to features other than the trademark itself which tend to identify the product to consumers.

It can include the appearance and shape of the product, the packaging or the font style or graphical presentation of the trademark, for example, the script used in the Coca-Cola logo. A good definition is the total image of a product, including features such as size, shape, color or color combinations, texture or graphics.

Like a trademark, trade dress is a property right, giving the owner the exclusive right to use it. The purpose of trade dress law is to prevent confusion of the consuming public in the marketplace.

One of the interesting aspects is whether a color or combination of colors used on a product can be protectable via trade dress or trademark law. Many products are identifiable simply by the color of their packaging.

An examples is two popular brands of artificial sweetener. The “pink one” is sold under the trademark Sweet ‘N Low, while “the blue one” is sold under the trademark Equal. However, the trademarks for these products are seldom uttered in Starbuck’s. Rather, you’ll hear, “Pass me one of the blue ones.”

The colors pink and blue have become so associated in the minds of coffee drinkers, the trademarks themselves are not as important as the color of the packaging. Another familiar examples is the color red for Coca-Cola cans and the color pink for insulation sold by Owens Corning.

Trade dress can be protected by registering it with the U.S. Patent and Trademark Office. Registration begins with the filing of an application, just as trademarks are registered. The applicant describes its trade dress, usually with reference to colors, and photographs accompany the application.

For example, American Airlines received United States Service Mark Registration No. 2,108,158 in 1997, giving it the exclusive right to use certain color combinations in association with transportation services. The registration reads ” … the colors blue, red and silver … The word ‘American’ is … red. The AA is … red for the first ‘A’ and blue for the second ‘A.’ The scissor eagle design is … blue. The plane is silver.”

By applying for registration of its trade dress, American Airlines has availed itself of the additional legal protection available under the federal trademark laws. Perhaps your company should consider trade dress protection.

No one wants to arrive at the marketplace wearing the same trade dress as someone else. Roger Emerson is a shareholder in the intellectual property law firm of Emerson & Associates. He can be reached at [email protected].