Business Basics: Trade Dress

This week we thought it’d be a good idea to look at one of the most important parts of a product’s branding, its trade dress. You are affected by trade dress every single day, whether you realize it or not. If we describe a white coffee cup with a green circle on it, you’ll know it’s from Starbucks. Or if we show you a bag with a red square and yellow arches, you’ll think McDonalds. Essentially, trade dress is the various characteristics that make up a product’s or package’s appearance. But how do you protect your own trade dress? And does building a brand mean marrying that packaging?

Why should you build trade dress recognition?
Because your company needs a way to immediately distinguish itself. Your brand embodies all of the goodwill and trust you’ve built into your company, and something as simple as a color, font, or even the shape of your product’s box can evoke all of those feelings within whatever customer is looking at your product. That’s why you want your trade dress to be consistent over all of your properties. Your logo, signage, site, and product packaging should all be built around some common element that inextricably ties your business with your product or service.

Can you protect trade dress?
Yes, as long as you consistently use the the distinguishing parts of your trade dress in your advertising. As with other trademarks, you can register trade dress with the United States Patent and Trademark Office, but it must be inherently distinctive, and use of it by another business must be likely to cause consumer confusion. That means your trade dress needs to be memorable and serve as the primary designator of your product. Submitting past advertisements and proving their effectiveness is a good way to establish your right to the mark.

Can you change your business’s trade dress?
Yup, though we wouldn’t recommend changing it very often. Proving your right to register a trademark on trade dress is already pretty tough. You can forgo registration, but it’s never a good idea to leave your branding unprotected. So if you change your branding, you basically from square one all over again. Of course, if your branding isn’t really working, then there’s no reason to hold onto it. The final choice is always yours, and some major companies have done well after ‘re-imagining’ themselves. Still, some of the most recognizable trade dress hasn’t been changed in decades.

Have any questions about trade dress? Or are you looking to file a trademark? Give us a call at 1 (877) 692-6772 and we’ll be happy to help you out!