Trade dress infringement is when a product’s external design imitates another product, including packaging and facility design. Companies sue to protect their intellectual property, but it can be difficult to prove. Trade dress includes a product’s logo, colors, layout, and other design elements. Companies protect their trade dress to avoid consumer confusion. To be considered trade dress, the look and feel must be distinctive and non-functional. Companies should scrutinize new designs to avoid accidentally violating trade dress.
Trade dress infringement is a form of infringement in which a product has an external design that mimics that of another product. This can include anything from toy packaging to the facility where a restaurant is housed. Companies can and do sue for trade dress violations to protect their intellectual property. Such cases can sometimes be difficult to prove, especially if a company hasn’t been aggressive about protecting its trade dress in the past.
The term “commercial dress” refers to the look and feel of the product and is sometimes described as its personality. This can include the product logo, but also includes colors, layout, and other design elements. People quickly learn to recognize visuals and associate them with specific products, making trade dress valuable. An example of trade dress is the furniture of the Coca-Cola product line. These products are made with a distinctive character, logo and red color which together constitute the trade dress of the product. When people see these design elements, they assume they are seeing something made by Coca-Cola.
Companies protect their trade dress because they are concerned about consumer confusion. In the example above, if ABC Soda Company starts making products that use elements of Coca-Cola’s trade dress, this could be considered a trade dress violation. Imitation may be the sincerest form of flattery, but in this case it can be seen as a deliberate and malicious attempt to confuse consumers into buying the wrong product.
To be considered a trade dress, the look and feel of a product must meet several standards. The first is that it is truly distinctive and strongly associated with the parent company. The second is that it must be non-functional, truly serving as packaging or “dress”. For example, the fluorescent strips on cycling clothes are not trade dress because they are installed for safety. Such stripes incorporated into the packaging of a toy, on the other hand, could be trade dress because they are purely aesthetic in nature.
If a company suspects that a trade dress violation has occurred, it can hire an attorney to take it to court. Companies designing new product packaging should be aware that it is possible to accidentally violate trade dress, and it is advisable to scrutinize new designs to ensure they do not step on other companies’ toes. If a new design has suspicious similarities in colors, shapes and other characteristics associated with a rival company, it could be considered an infringement.
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