Identify trade dress elements to protect your product packaging

Trade dress for product packaging is a valuable intellectual property right. Sellers should be cognizant of this right and of the ability to assert their trade dress rights against competitors who use similar packaging that is likely to cause confusion, mistake or deception as to the origin, sponsorship or approval of goods.

To more successfully assert such rights, sellers should identify in detail the elements of the trade dress to be protected and be prepared to show that the packaging is not functional, and that there is a likelihood of confusion between their packaging and the competitor’s allegedly infringing packaging.

What can be protected?
A product’s packaging, design, color or other feature or characteristic can qualify for trade dress protection. Packaging trade dress is essentially the packaging’s total image and overall appearance. It may include features such as size, shape, color or color combinations, texture, graphics or even particular sales techniques.

Trade dress protection is designed for the benefit of both the consumer and seller. Consumers generally rely on packaging for information about the product and its source, and a trade dress serves to identify the product with its manufacturer or source. It protects sellers by ensuring that competitors do not misappropriate any goodwill associated with the sellers’ products.

To guard against an anti-competitive effect, trade dress protection is not freely given but, rather, first requires proof that the feature sought to be protected is (1) not functional and (2) distinctive.

One may register product packaging, a product design, color or other trade dress for goods or services with the United States Patent and Trademark Office, which requires a “showing” of these two elements. In the absence of a registered trade dress, one must establish these two elements before a court.

What’s “not functional”?
A feature is not functional if it is arbitrary, incidental or ornamental. In contrast, a feature is functional if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.

Even if it is not essential or does not so affect cost or quality, a feature can still be functional if its exclusive use would put competitors at a significant disadvantage. A utility patent that discloses the feature’s utilitarian advantages is strong evidence that the feature is functional.

What’s “distinctive”?
A feature is distinctive if (1) the feature’s intrinsic nature serves to identify a particular source, that is, the feature is “inherently distinctive”; or (2) over time, consumers have come to view the feature as signifying a particular source, that is, the feature has acquired “secondary meaning.”

Certain features, such as product design and color, can never be considered inherently distinctive, and thus always will require a showing of secondary meaning. In contrast, product packaging is capable of being considered inherently distinctive if it is unique or unusual in the field in which it is used; or capable of creating a commercial impression distinct from any accompanying words.

Courts evaluate trade distinctiveness by looking at all the elements and considering the total impression the trade dress gives to the observer. Individual elements viewed as common (or “generic”) in isolation may, nevertheless, be combined with each other in a manner so as to give an impression considered to be distinctive. Thus, it is important to articulate the specific elements that make up the trade dress.  F&BP

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