Trade dress encompasses the total image and overall appearance of a product or business. This includes size, shape, colour combinations, texture, graphics, packaging design, and even the layout of a restaurant or retail store. Famous examples include the distinctive shape of the Coca-Cola bottle, the red sole of Christian Louboutin shoes, and the layout of Apple retail stores. To be protectable, trade dress must be distinctive — either inherently (its design is unusual enough to automatically indicate source) or through acquired distinctiveness (consumers have come to associate the appearance with a particular brand through extended use). Additionally, the trade dress must be non-functional, meaning the design features are not essential to the product's use or purpose. Trade dress protection is available under the Lanham Act in the United States and through similar provisions in the EU and UK. Unlike design patents or registered designs, trade dress protection can last indefinitely as long as the trade dress remains distinctive and is actively used in commerce. However, proving trade dress infringement typically requires demonstrating a likelihood of consumer confusion.
Why It Matters
Trade dress is a powerful but underutilised form of IP protection. For products where visual appearance is a key differentiator — consumer goods, fashion, food and beverage, technology hardware — trade dress can provide perpetual protection that outlasts design patents. However, establishing and defending trade dress rights requires careful documentation of distinctiveness and consumer association.
How This Connects to IP Protection
immut helps establish trade dress rights by creating timestamped records of your product designs and packaging from the earliest stages. Blockchain-verified evidence of when specific design elements were first used can support claims of acquired distinctiveness, prove priority in disputes, and document the evolution of your trade dress over time.
Common Mistakes to Avoid
Trade dress only covers packaging: Trade dress extends far beyond packaging. It can protect the shape and design of the product itself, the decor and layout of a business, the style of a restaurant, or any visual element that consumers associate with a particular source.
You must register trade dress to be protected: Trade dress can be protected without registration through common law rights. However, federal registration (in the US) or trademark registration (in other jurisdictions) provides significant advantages, including nationwide priority, a legal presumption of validity, and enhanced remedies for infringement.
Any distinctive design qualifies as trade dress: Functionality is a critical limitation. If a design feature is essential to the product's function or gives a competitive advantage unrelated to source identification, it cannot be protected as trade dress. This prevents companies from using trade dress to obtain perpetual monopolies on functional features.
Frequently Asked Questions
How do you prove trade dress infringement?
You must demonstrate that your trade dress is distinctive (inherently or through acquired distinctiveness), non-functional, and that the defendant's product creates a likelihood of confusion among consumers. Evidence typically includes consumer surveys, evidence of actual confusion, the similarity of the trade dress elements, and the sophistication of the relevant consumers.
How long does trade dress protection last?
Trade dress protection can last indefinitely, as long as the trade dress remains distinctive and continues to be used in commerce. This is a significant advantage over design patents, which expire after 15 years in the US or 25 years in the EU. However, protection ends if the trade dress becomes generic or is abandoned.
What is the difference between trade dress and a design patent?
A design patent protects a specific ornamental design for a fixed term (15 years in the US) and requires registration. Trade dress protects the overall commercial image that identifies source, can last indefinitely, and does not require registration. Trade dress requires proof of distinctiveness, while design patents require only novelty and non-obviousness.
Protect Your Intellectual Property Today
Whether you are navigating trade dress or building a broader IP strategy, immut gives you instant blockchain-verified proof of your innovations — no lawyers, no delays.