Don’t overlook the value of trade dress protection

| Jul 17, 2020 | Intellectual Property Litigation |

Intellectual property can be a powerful way to build your brand’s reputation and increase brand awareness. In a marketplace saturated with competition, this property can differentiate your business, giving you a leg up on your competitors. Yet, intellectual property is only as strong as it is protected, meaning that you need to know which aspects of your business you can protect and how to go about protecting it when your intellectual property rights have been infringed upon.

While copyright, patent, and trademark rights are rather well known and utilized in the business realm, there’s another type of intellectual property that you might be able to protect: trade dress. Trade dress is the overall appearance of a product. This can include aspects like shape, texture, and color. Even certain appearances and practices may be considered trade dress. Therefore, if the overall appearance of your product sets it apart from others, then you might be able to prevent others from copying it and causing market confusion. This can protect your brand and your share of the market.

Before trade dress protection can be granted, though, you’ll need to prove certain legal elements. Like a trademark, trade dress must be distinctive. The product in question must either be inherently distinctive or it must have acquired distinctiveness. Additionally, the product sought to be protected must be non-functional. That is to say that protecting them would disallow others from creating similar competing products. Therefore, you have to ask yourself whether the protected product or aspect of a product is essential for the overall product to function. If so, then it’s less likely to enjoy trade dress protection.

Trade dress can provide you and your business with pretty broad protection. However, trade dress is often overlooked for a variety of reasons. You don’t have to let that happen to you. Instead, you can work closely with an experienced intellectual property attorney to better determine if you have protectable trade dress and, if so, how best to go about ensuring your rights are protected as fully as possible.


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