A trade dress is the term given to the visual make up and characteristics of a product or packaging that identifies to the consumers the source of the product. Trade dress terminology is not recognized in every jurisdiction and protection cannot be sought where the country does not provide specifically for trade dress. It is important to be aware of your trade dress rights and so it is advised that you seek professional advice.
Trade dress explained
As mentioned, a trade dress is the legal term given to the artwork, makeup and general characteristics in terms of a products appearance and packaging. Anything that identifies to the consumer the source of the product through visual art can be deemed as trade dress.
Although trade dress is categorized within the area of intellectual property, it is not recognized in every jurisdiction that provides for trademark rights. The US recognizes and offers protection for all trade dress rights under the Lanham Act. The UK also protects trade dress under their passing off law which aims to prevent third parties and other products from using the same or similar as another protected trade dress to ultimately restrict the event of passing off occurring.
Passing off is an offence in many jurisdictions under their relevant intellectual property laws as the act of passing off is detrimental to the registered trademark or trade dress’ image and reputation and it also confuses the consumer as to the validity and authenticity of a product.
Trade dress protection aims to protect consumers from products and packaging imitating other products and packaging thus making it clear to the public which product belongs to which source without the result of confusion of ambiguity.
Under the Lanham Act, Section 43(a), a trade dress is protected without the requirement of official or formal registration with the relevant intellectual property office. Under this section, the owner of the original trade dress has the legal right to sue the infringing party and seek the appropriate remedies for any damage or loss caused as a result of the passing off.
In the US, trade dress can be official registered with the PTO – United States Patent and Trademark Office. For more information and legal guidance with regards to registering your trade dress with the PTO you are advised to seek professional consultancy services from a specialized firm or intellectual property attorney.