The Lanham Act protects trade dress if it serves the same source-identifying function as a trademark. It is possible to register trade dress as a trademark, but for practical reasons most trade dress and product configurations are protected without registration under 15 U.S.C. § 1125(a).
In other words, it must be shown that consumers associate the trade dress with the source. The following factors will be considered for secondary meaning: (1) length of use; (2) sales success; (3) amount spent on advertising; (4) survey evidence; and (5) unsolicited media coverage.
A trademark offers legal protection for a logo, symbol, phrase, word, name, or design used to show the manufacturer of a product. Trade dress protects all elements used to promote a specific service or product.
To remove doubt, you can register your company's trade dress with the U.S. Patent and Trademark Office. Otherwise, you must demonstrate that the trade dress is unusual, distinctive, fanciful or unique. You may also show that your customers identify your trade dress with your product or service.
Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another.
trade dress. refers to the image and overall appearance of a product. protected to the same degree as a trademark. the image and overall appearance ("look and feel") of a product that is protected by trademark law.
Trade dress can be protected only if the owner of the trade dress can show the average consumer would be confused as to the origin of a product if another product appears in the same or similar packaging.
Trade dress is a type of trademark directed to the distinctive look and feel of a product or service which identifies its source. To be registrable, a trade dress needs to serve as a source identifier, be distinctive in the marketplace, be used in commerce, and be primarily non-functional.
Some of the famous trade dress are the shape of a coca-cola bottle, grills of the Rolls Royce car. With growing competitors, trade dress provides a new forum to secure the aspect of distinctiveness. The illiterate consumers can even differentiate the product based on the packaging.
Trade dress infringement occurs when one product's design or packaging copies or mimics that of another product to the extent that there is a likelihood of confusion in the mind of the purchasing public.
Trade secret infringement is called “misappropriation.” It occurs when someone improperly acquires a trade secret or improperly discloses or uses a trade secret without consent or with having reason to know that knowledge of the trade secret was acquired through a mistake or accident.