Trade dress is a type of intellectual property that is protected by the law from copy or theft. Similar to a trademark, trade dress is the packaging, promotion, or any other element that is used to promote or sell a product or service. This could include the décor of a store, the likeness of a product, distinctive display cases for a product, or the environment of a facility.
It is important to register trademarks and trade dresses with the U.S. Patent and Trademark Office to receive a legally protect your product or ideas with federal courts. In order to receive a patent and the protection it provides, two things must be true: the trade dress must be distinctive or required a secondary meaning and unlicensed duplication of the product or trade dress must cause a likelihood of consumer confusion.
In order for a trade dress to be inherently distinctive, it must be unusual or memorable in such a way that consumers will identify the product or service as conceptually separable from similar offerings. The trade dress must also serve as a distinct identifier of the origin of the product.
Functional elements of a product cannot be trademarked or trade dress. An example of this would be a Tiffany & Co. jewelry box. The box itself is a functional vessel that cannot be trade dress. However, the Tiffany blue color and white ribbon that accompanies the functionality of the box are capable of trade dress to protect Tiffany & Co. from individuals looking to imitate and profit from the sales of a like item.
According to the website of Gagnon, Peacock & Vereeke, P.C., a trade dress infringement can cause lost profits, monetary damages, and statutory damages. If you believe that you are a victim of trade dress infringement, consult a, intellectual property attorney in your state to protect your product and ideas.