Trade Dress Protection: Where Brand Identity Meets the Functionality Bar

71 questions on trade dress protection, answered and cited by the UpLaw editorial team.

• Can a brand owner predict a trade dress outcome from another company's case?
• Can a building be inherently distinctive trade dress?
• Can a business protect a single décor element as trade dress?
• Can a multi-color packaging design be inherently distinctive?
• Can a scent be registered as a trademark?
• Can a single color be trade dress?
• Can functionality be cured by acquiring more secondary meaning?
• Can the design of a restaurant or store be trade dress?
• Can trade dress be diluted?
• Can trade dress be registered on the Supplemental Register?
• Can trade dress extend a monopoly that patent or copyright let expire?
• Can you protect a trade dress claim without a federal registration?
• Does any circuit apply a modified confusion test for product configuration?
• Does the availability of alternative designs save a feature from being functional?
• Does the Lanham Act use the phrase "trade dress"?
• Does trade dress protection expire?
• How can a company's own patents defeat its trade dress claim?
• How can a design patent and trade dress work together?
• How did TrafFix change the functionality analysis?
• How does a trade dress application differ from a word mark application?
• How does Hermès protect the Birkin bag as trade dress?
• How does trade dress relate to design patents, utility patents, and copyright?
• How do you tell packaging trade dress from product design in practice?
• How is likelihood of confusion assessed for trade dress?
• How many elements should a trade dress claim list?
• How should a company calibrate a trade dress cease-and-desist letter?
• How should a company design trade dress protection into a product from the start?
• Is five years of use enough to prove acquired distinctiveness for trade dress?
• Is functionality a question of law or fact?
• What are the categories of trade dress?
• What are the five Supreme Court decisions that built modern trade dress law?
• What are the Morton-Norwich factors?
• What are the Seabrook factors for inherent distinctiveness?
• What are the three elements of a trade dress claim?
• What defenses does a trade dress defendant have?
• What did the Ezaki Glico Pocky case decide about functionality?
• What did the Louboutin red sole case decide?
• What did the Supreme Court decide in Jack Daniel's v. VIP Products?
• What did Wal-Mart v. Samara Bros. decide about product design?
• What does registering trade dress on the Principal Register provide?
• What does the Apple store registration teach about trade dress?
• What evidence proves secondary meaning for trade dress?
• What grounds of refusal does a USPTO examiner apply to trade dress?
• What happens to a trade dress claim when the look is common for the product category?
• What happens to the non-functionality presumption once a defendant makes a strong showing?
• What happens when a court cannot tell whether trade dress is packaging or design?
• What is aesthetic functionality?
• What is "look-for" advertising and why does it matter?
• What is product configuration trade dress?
• What is secondary meaning in trade dress law?
• What is the Inwood test for functionality?
• What is the realistic path for a company claiming trade dress in a product's shape?
• What is the recurring tension at the heart of trade dress law?
• What is the TTAB's role in trade dress disputes?
• What is trade dress?
• What product features have been held functional and unprotectable?
• What product features have been held non-functional and protected as trade dress?
• What remedies are available for trade dress infringement?
• Which Lanham Act provisions govern trade dress?
• Who bears the burden of proving functionality?
• Why can a design choice made "for looks" turn out to be functional?
• Why do courts apply aesthetic functionality cautiously?
• Why do courts insist trade dress be judged as a whole?
• Why does the law treat a product's look with more suspicion than a word mark?
• Why do trade dress cases so often turn on the plaintiff's own documents?
• Why is Louboutin the leading lesson on trade dress scope?
• Why isn't high sales volume enough to prove secondary meaning?
• Why is product packaging the easiest trade dress to protect?
• Why is the Coca-Cola contour bottle a textbook trade dress example?
• Why is the functionality doctrine the most common reason trade dress claims fail?
• Why must a trade dress plaintiff define its claim with precision?