Trade dress

Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress is a form of intellectual property.

The new Trade Marks Act, 1999, which came into force in September 2003 introduced a new legal definition of a trade mark, which, in part, encompasses almost all the elements of trade dress as defined by the US law.

Trade dress can be protected as getup under the law of passing off in the UK. Passing off is a common law remedy for protecting an unregistered trademark. Getup, packaging, business strategy, marketing techniques, advertisement themes etc. can also be protected under passing off.

In the U.S., like trademarks, a product’s trade dress is legally protected by the Lanham Act, the federal statute which regulates trademarks and trade dress. Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another. For example, the shape, color, and arrangement of the materials of a children's line of clothing can be protectable trade dress (though, the design of the garments themselves is not protected), as can the design of a magazine cover, the appearance and décor of a chain of Mexican-style restaurants, and a method of displaying wine bottles in a wine shop.

Under section 43(a) of the Lanham Act, a product's trade dress can be protected without formal registration with the United States Patent and Trademark Office (PTO). In relevant part, section 43(a) states the following:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
(A) is likely to cause confusion, or to cause mistake, or to deceive [...] as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such an act.

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