TRADE DRESS INFRINGEMENT & PROTECTION 

What Is A Trade Dress?

While there is no exact definition of a trade dress, a trade dress has been found to include a symbol or device within the Lanham Act definition of a trademark.  The Lanham Act defines a trademark to include any word, name, symbol, or device, or a combination thereof, used to both: i) identify and distinguish goods from those manufactured and sold by others; and ii) indicate the source of the goods, even if the source is unknown.  A federal claim for trade dress infringement may be brought under Section 43(a) of the Lanham Act: 

"Any person who, on or in connection with any goods or services, . . .uses in commerce any word, term, name, symbol, or device, or a combination thereof, or any false designation of origin, . . . , which –

(A) is likely to cause confusion or to cause mistake, or to deceive as to the affiliation, connection or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . .

shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act."

Section 43(a) of the Lanham Act

The courts have interpreted "trade dress" as describing the total image, which may include the following features: Size; Shape; Color or color combinations; Texture; Graphics, and Particular sales techniques. In simple terms, a “trade dress” means the overall appearance of a product or business in commerce – how a product is “dressed” for sale.  Trade dress is the commercial look and feel of a product or service that identifies and distinguishes the source of a product or service from the products and services of others. Trade dress may include the design and shape of materials in products and product packaging; For example, in services, trade dress protection could consist of visual elements such as a restaurant’s décor, theme, layout, service style, and overall customer-facing presentation and consumer impression. Trade dress litigation recognizes the importance of protecting the public from the  confusion and deception arising from a defendant's attempt to “palm off” products resembling your trade dress.  For more information regarding trade dress, see our Trade Dress Registration & Protection web page. 

What Are Some Categories of Trade Dress?

While any distinctive combination of elements of a product or service may constitute a trade dress under the Lanham Act, there are five main categories of trade dress:

• Product packaging and containers (labeling, wrappers, and cartons, etc.);

• Product design (footwear, vehicles, and handbags, etc.);

• Product color (pink for fiberglass, etc.); 

• Business exteriors and interiors (appearance of the exterior, interior, signs, floor plan, menus, equipment, etc.); and

• Sounds and accents (NBC chime, themes, etc.); 

A trade dress is an often overlooked but powerful area of law to protect your business endeavors.   Trade dress is a valuable business asset exemplifying a company's product, services, reputation, and goodwill.  How a product is packaged, configured, or colored may constitute a trade dress.  For instance, a restaurant's trade dress may include the shape and general appearance of its exterior features, signage, floor plan, decor, menu, equipment, and employee uniforms.

What Is Not A Trade Dress?

Wholly functional product features are not protectable under the Lanham Act and, are not a trade dress.  The U.S. Supreme Court has identified two methods to determine whether a trade dress is functional:

• Utilitarian functionality; and

• Aesthetic functionality. 

A functionality analysis is fundamental because granting trademark rights in a product design is more likely to prevent competition than is granting rights in product packaging.

Dallas Trade Dress Litigation Lawyers



Our Dallas trade dress litigation attorneys have earned a reputation for aggressive, responsive, efficient, and most importantly, successful trade dress litigation. While we are prepared to take every case to trial, we know from our clients' perspective that often, the best litigation is the one that settles in mediation. Our straight forward unbiased guidance can help you avoid litigation whenever possible. However, if needed, our litigators are skilled in negotiation techniques and have a reputation for achieving very favorable results for our clients both in-court and out-of-court.