What Is A Trade Dress? - Drishti Law

Businesses aim for a unique identity within the versatile field of commerce which would set them apart from their counterparts or competitors. Primarily this is done in the form of trademark protection which safeguards logos and brand names but beyond that, the concept of trade dress plays a key role in establishing that unique identity.

If you have queries related to trade dress, what it encompasses, and under which rules of the trademark law it falls, you have come to the right place. This blog is about all the details you are seeking concerning ‘trade dress’, exploring its legal significance and implications within the area of intellectual property. 

Understanding Trade Dress

Trade dress pertains to the visual and aesthetic aspects of a product or service which contributes to its overall image. It can include factors such as the design, colour, shape, packaging, and even the decor of a store or restaurant. In other words, trade dress is the unique visual identity of a brand which distinguishes its goods and/or services from others. As stated above, it is a step beyond the concept of trademark, where the latter pertains to the logo or brand name of the business. 

Although the trade dress law is meant to protect the product configuration, in some situations, it is advised to obtain a design patent instead of trade dress protection. 

Importance of Trade Dress

Trade dress has considerable importance within the intellectual property field. An example of this is the legal battle between Apple and Samsung where the latter was accused of copying the rounded corners and icons grid which primarily constituted as distinctive features of the iPhone. 

Following is a detailed discussion on this topic. 

1. Brand Recognition

 Trade dress, similar and yet different from trademark, uses design, colour, and shape in forming a unique identity for the brand and establishing its reputation in the market. It contributes to brand recognition as the customers do not just identify a brand by its logo, they often do so through its unique trade dress. This also brings up the fact that a lot of times people can’t remember the name of the brand, and this is where trade dress comes into play. 

2. Building of Trust and Loyalty

A distinctive trade dress goes a long way in establishing trust and loyalty for the customers. If customers are easily able to form an association of a particular trade dress with the brand, it instils a sense of familiarity and reliability in them which propels them to purchase with that brand. 

3. Creating an Edge within the Competition

Establishing your popularity within a bustling marketplace is super competitive, and arguably difficult. However, a unique and appealing trade dress may help grab customer’s attention and make your goods stand out amongst the many. 

Trade Dress Protection under the Lanham Act

To protect trade dress, the Lanham Act is of significance – also known as the Trademark Act of 1946. The Act is not only a source for trademark protection such as logos and brand names, but also grants trade dress rights. This allows brands to also get their trade dress registered with the U.S. Patent and Trademark Office (USPTO) in the form of a trademark. 

Common law also protects trade dress. The Supreme Court affirmed in the case of Two Pesos, Inc. v. Taco Cabana, Inc. (1992) that trade dress is protectable under the Lanham Act. Even if the trade dress is not registered, it might still be protected under 15 U.S.C. Section 1125.

Following are the rules which must be qualified to acquire a protectable trade dress.

Section 43(a) – Unfair Competition

Section 43(a) provides for the prohibition of any such acts which would lead to unfair competition in the market such as false advertising. This provides businesses with legal protection against infringement and the likelihood of confusion caused by the infringers in the market. 

The Inherently Distinctive Requirement

For acquiring protection under this Act, it is imperative that the trade dress is inherently distinctive in its appearance or that the elements of the trade dress have gained secondary meaning. In other words, the trade dress should be such that the consumer automatically associates it with the brand as soon their sight lands on it. 

Even if the trade dress does not fulfil the requirement of inherent distinctiveness, it can still be registered in the United States Supplemental Register. Additionally, if the owner demonstrates that the trade dress has acquired secondary meaning, then it can be registered in the United States Principal Register.

Non-functionality Requirement

In addition to distinctiveness, trade dress must also be non-functional. A trade dress cannot be protected if its design is ‘functional’ i.e. the element of the trade dress is essential for the purpose or use, or quality or cost, of the subject matter. 

Likelihood of Confusion

If the trade dress contains elements which are similar to another product, so much that there is a likelihood of visual confusion amongst the customers, then such a trade dress might be considered an infringement, and hence, non-registerable as a trademark. 


Businesses must establish a distinct identity for their brand to stay on top of the competition within the market. Trade dress is largely helpful in this regard, as its focus on the visual elements of the products in the form of design, colour scheme, and packaging provides businesses with a powerful means of differentiating their products/services from other brands. Since businesses spend considerably in crafting their trade dress, legal protection becomes crucial.

In the event of trade dress infringement, it is important that all the abovementioned requirements under the Act are satisfied in order to initiate a lawsuit. 

If you are also looking for adequate legal protection for your trade dress, don’t hesitate to contact us. Book a free consultation today with Drishti Law to learn how our experienced principal attorney can help you register your trade dress as a trademark. We provide a variety of services which can meet the specific legal needs of your brand.