Basics of Trade Dress Protection

Trademark protection may extend beyond words or phrases that serve to identify products or services.  The design, shape and packaging of a product and even the décor or environment in which services are provided may be protected as “trade dress”.  As you might imagine, there are several requirements in order for your products or services to receive trade dress protection.

Trade dress was originally applied only to product packaging, but in recent years has expanded to include the “total image and overall appearance” of a product or place where a service is performed, and may include features such as size, shape, color or color combinations, texture, and graphics.  Almost anything that is capable of carrying a meaning can be considered as a trade dress that identifies the source or origin of the product.  As with word marks, trade dress is protected upon use in commerce but broader rights are gained through registration with the United States Patent and Trademark Office.


To qualify for a trade dress protection and a registration, a product design, packaging, color or other trade dress for goods or services must be: (1) not functional, and (2) distinctive.

1. Functionality of Trade Dress

If a trade dress is functional, it cannot serve as a trademark.  A trade dress is considered functional if it is essential to the use or purpose of the article, or if it affects the cost or quality of the article.  According to the Lanham Act, registration of a matter that is functional as a whole is prohibited even if it is shown that matter is distinctive. 

Factors used to determine if a trade dress is functional includes the existence of a utility patent, advertising by the applicant that promotes the utilitarian advantages of the design, the availability of the alternate designs, and whether the design results from a simple or inexpensive method of manufacture.  For example, the bright yellow color of tennis balls is trade dress, however it cannot be registered as a trademark because it is functional.  The purpose of the bright color is to make the balls easy to see while playing tennis.

2. Distinctiveness

Trade dress seeking protection must be distinctive, or have secondary meaning, in order to be protected as a trademark and registered with the USPTO.  In order to prove that the mark is distinctive, the applicant must prove that the consuming public has come to associate the trade dress with the source of its goods.  A good example of a color trademark is “Tiffany Blue.”  Tiffany & Co. jewelry company has been packing their product with the same distinctive tone of blue for so long that that consumers associate the it with Tiffany & Co., and it therefore receives trade dress protection. 

Registering your product or service's trade dress with the USPTO protects you from competitors selling products with similar trade dress, and thereby using the good will you have created with consumers over a period of time.

If you have questions or would like to protect your company's trade dress, please give us a call at 650-271-9395, or email us at 

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.