Trade dress is a type of trademark right that protects the overall appearance or feel of a product, in contrast to a traditional word or logo trademark identifying the product. Trade dress, like trademark, aids a business entity in creating an identity for its product and/or service and aids the consumers in identifying the source of the products and/or services.
The notion of what can fall under trade dress protection continues to evolve. Trade dress originally included only the packaging or "dressing" of a product, but in recent years has expanded by many courts to include the design of the product. Trade dress can range from:
Trade dress is protected and enforced under the Federal Lanham Act (15 U.S.C.S. § 1125). The courts have assumed that trade dress constitutes a "symbol" or "device" and hence falls within the definition of a trademark.
To receive Lanham Act protection, trade dress must be distinctive and non-functional. Distinctiveness is a prerequisite for registration of trade dress under § 2 of the Lanham Act and for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).
A trade dress can be distinctive in two ways: (1) it can be inherently distinctive, or (2) it can have acquired distinctiveness, which also known as acquiring a "secondary meaning." Secondary meaning is acquired when, "in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself."