You've spent a lot of money developing and building your new product. You got a utility patent around it. And its unique design stands out from the competition. Then a product appears with a similar look to yours. The value of your new invention takes a nose dive as you realize too late you failed to register a trade dress to further protect the unique look of your product.
Trade dress is a type of trademark that's often overlooked, and in many cases just as valuable as a brand. It's similar to a design patent (which only covers the non-functioning appearance of a product), but is used to protect more than just the product appearance.
The key difference between a trademark and trade dress is what it protects. Trademarks protect brand names, logos, symbols and designs, such as brand name Ford or the apple symbol for Apple Computer. Trade dress protects the unique “look and feel” of a product (or service), packaging or even a store layout. It includes features such as size, shape, color, texture, graphics and even sales techniques combined together. For example, the brand name and logo hang tag and distinctive pocket stitching on a pair of jeans is registered as a trademark, and the unique shape of a dress is registered as a trade dress.
In the case of packaging, trade dress protects the unique appearance, such as customized boxes and graphics. Some examples include the Tiffany blue box and the Coca Cola bottle.
Trade dress value is growing as more brands are using it to help their products and services stand out from the competition. You'll find registered trade dress as part of the trademarks in a variety of industries including pharmaceuticals (the color and shape of a capsule), retail fueling stations (the shape of the gas pump at Mobile stations), greeting cards (look of the ”Feeling Sensitive” branded cards), format of magazine covers (People Weekly), physical features on a brief case (Ventura Travelware), building shapes (the Fotomat stores), sewing patterns (McCalls), and even point of sale displays (White Castle Burgers).
Trade dress is becoming a hotly contested IP in infringement lawsuits. Some recent examples include Apple suing Samsung for copying the 3G iPhone design, Kind energy bars sued Clif Bar for infringing their packaging design,and Keds shoes sued Vans for infringing on the distinctive blue square featured on their shoe heels.
Trade dress is also an important part of a licensing agreement. Especially if it's combined with other types of IP such as a unique design for a patented product, or as part of a license for software with a distinctive packaging look. It enhances the value of your IP and makes it more attractive to potential licensing partners.
Your company's visibility in the form of logo designs and brand names, as well as the unique look of your products or packaging are important parts of your trademark. All the elements that makes the appearance of your product or service unique, such as the combination of color, geometric shapes, imagery and lettering, are your trade dress.
Don't make the mistake of failing to register these as trade dress. Otherwise you risk losing your marketing investment and competitive advantage if a competitor shows up with a similar product or packaging design.
Rand Brenner is an IP professional whose passion is helping inventors, startups, and businesses of all sizes use licensing to turn their IP into income-producing products, services, and technologies. His decades of experience run the gamut from medical devices to food technology to consumer products. He's licensed some of the biggest Hollywood entertainment blockbusters including the Batman Movies (1 and 2), and the number one kid's action TV show, the Mighty Morphin Power Rangers. Rand speaks about licensing and is a featured speaker at investment conferences, trade shows, colleges, and startup events. His first book, Hidden Wealth: The Money Making Power of Licensing was released in 2019 and is available on Amazon.com. He's also a published writer with articles appearing in several prestigious trade magazine including The Licensing Journal, Intellectual Property Magazine, and License India. Rand also mentors at the Cal State Fullerton School of Business and Economics and is a judge for their startup business plan competitions.