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Trade Dress Law

Intellectual property can be a key asset of many businesses. Whether your business is a technology based business, or a consumer product, intellectual property can be valuable. It is important to invest in the protection of your company’s intellectual property. A failure to police and defend your intellectual property rights may result in a loss of those rights. If you need help protecting your Intellectual Property please call the trades dress attorneys at Gaston & Gaston at 619-398-1882 today.

Trade dress constitutes the distinctive look of a product or its packaging. The distinctive elements must be more than merely utilitarian. Famous examples of trade dress are the Tiffany blue box, or the distinctive shape and color of Coca Cola’s red bottle.  Elements of trade dress and can include colors, package design, fonts, smell, three-dimensional shape and other elements that make a product or its packaging distinctive to consumers.

Trade dress law is the legal protection for trade dress protected by statute.

There are two basic requirements that must be met for trade dress law protection. The first is that the protectable features must be capable of functioning as a source indicator—identifying a particular product and its maker to consumers. In the United States, package design and building facades can be considered inherently distinctive. However, product design can never be inherently distinctive. Therefore, product design trade dress or other designs that cannot satisfy the ‘inherent distinctiveness’ requirement may only become protectable by acquiring ‘secondary meaning.’ Secondary meaning requires that the product design acquire an association in the public mind with the producer of the goods.

Under the functionality doctrine, trade dress must also be nonfunctional in order to be protected. If the element is functional, protection should be sought under patent law. What is functional depends upon the particular product. To be nonfunctional, it cannot affect a product’s cost, quality, or a manufacturer’s ability to effectively compete in a non-reputational way. For example, color is functional in regard to clothing because that product is purchased substantially because of its color and appearance, but color is not functional on household insulation, which is purchased purely to be installed in a wall and is never seen. In fact, courts have found that the color of certain building insulation constituted protectable trade dress.

Adoption of another’s business’s trade dress may be infringing if it confuses potential customers as to the origin of the goods.

A court will look at the various elements adopted to see whether they appear confusingly similar to a reasonable consumer. Courts will not require that consumers closely inspect goods to determine their origin. Courts adopt the policy that if it appears to be the brand and trade dress of a well known producer, a consumer should be able to rely on this appearance. When one company adopts the trade dress of another to sell their own product, it is called “passing off”. The public policy behind trade dress is to protect innocent consumers from purchasing an inferior good or service believing it to be that of a reputable producer because of a confusingly similar trade dress.

If you need advice regarding protecting trade dress or believe that someone may be infringing upon the trade dress of your goods or services, please call our trade dress lawyers today.  Our San Diego and Orange County, California trade dress attorneys are here to help.  Please call the law firm of Gaston & Gaston at 619-398-1882 today.


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