---
title: Trade Dress Protection
description: An overview of the legal principles and requirements for obtaining trade dress protection in the United States.
keywords: [trade dress, trade dress protection, Lanham Act, distinctiveness, functionality, likelihood of confusion]
category: law
---

## Introduction to Trade Dress Protection

Trade dress is the overall commercial image and appearance of a product or service that identifies its source and distinguishes it from competitors. The Lanham Act, the primary federal trademark statute in the United States, provides protection for trade dress under Section 43(a), which prohibits the use of any "word, term, name, symbol, or device, or any combination thereof" that is likely to cause consumer confusion as to the origin of goods or services.[^1] Trade dress protection can encompass a wide range of elements, including a product's size, shape, color, color combinations, texture, graphics, and even the design of the product's packaging.[^2]

The underlying purpose of trade dress protection is to prevent consumer confusion and protect the goodwill associated with a particular product or service.[^3] By allowing businesses to protect the unique features of their products or services, trade dress law encourages innovation and investment in product design, while also safeguarding consumers from being misled about the source of the goods they purchase.[^4]

## Requirements for Establishing Trade Dress Protection

To obtain trade dress protection under the Lanham Act, a plaintiff must demonstrate that the trade dress is (1) inherently distinctive or has acquired secondary meaning, and (2) nonfunctional.[^5] Additionally, the plaintiff must show that the defendant's use of the trade dress is likely to cause consumer confusion as to the source of the goods or services.[^6]

### Distinctiveness
The first element of a trade dress claim requires the plaintiff to establish that the trade dress is either inherently distinctive or has acquired secondary meaning. Inherent distinctiveness means that the trade dress "almost automatically tells a customer that it refers to a brand."[^7] This is typically the case with fanciful or arbitrary trade dress, such as the Coca-Cola bottle design. In contrast, trade dress that is merely descriptive of the product's qualities or characteristics must have acquired secondary meaning, meaning that "in the minds of the public, the primary significance of a [trade dress] is to identify the source of the product rather than the product itself."[^8]

### Functionality
The second element of a trade dress claim requires the trade dress to be nonfunctional. A feature is considered functional if it is "essential to the use or purpose of the article or if it affects the cost or quality of the article."[^9] Trade dress protection cannot be used to prevent competition by allowing a producer to monopolize a useful product feature.[^10] Accordingly, the functionality doctrine serves to maintain the proper balance between trademark law, which seeks to promote competition by protecting goodwill, and patent law, which grants limited monopolies to encourage innovation.[^11]

### Likelihood of Confusion
Finally, the plaintiff must demonstrate that the defendant's use of the trade dress is likely to cause consumer confusion as to the source of the goods or services. This is assessed based on a multifactor test that considers factors such as the similarity of the trade dresses, the strength of the plaintiff's trade dress, the proximity of the goods or services, the likelihood of product expansion, and evidence of actual consumer confusion.[^12]

## Burdens of Proof and Remedies

The plaintiff bears the burden of proof on all elements of a trade dress infringement claim.[^13] If the plaintiff successfully establishes its case, the court may grant various forms of relief, including injunctive relief to prevent the defendant's continued use of the infringing trade dress, as well as monetary damages to compensate the plaintiff for any lost profits or harm to its goodwill.[^14]

In cases where the defendant's infringement is found to be willful, the court may also award the plaintiff's attorney's fees and treble damages, which can significantly increase the potential liability for the defendant.[^15] Additionally, in exceptional cases, the court may order the destruction of any infringing products or packaging.[^16]

## Limitations and Defenses

While trade dress protection can be a powerful tool for businesses, it is not without its limitations. One significant limitation is the functionality doctrine, which, as discussed above, prevents trade dress protection from being used to monopolize useful product features.[^17] Additionally, the trade dress must be nonfunctional in its entirety, as the functionality of a single element can defeat the entire claim.[^18]

Defendants in trade dress infringement cases may also raise various defenses, such as arguing that the plaintiff's trade dress is not distinctive, that the defendant's use is not likely to cause consumer confusion, or that the defendant's use is a fair use or otherwise permitted under the Lanham Act.[^19] The availability and success of these defenses will depend on the specific facts and circumstances of each case.

## Conclusion

Trade dress protection under the Lanham Act provides an important means for businesses to safeguard the unique features and appearance of their products or services. By establishing that the trade dress is distinctive and nonfunctional, and that the defendant's use is likely to cause consumer confusion, plaintiffs can obtain injunctive relief and monetary damages to protect their valuable intellectual property. However, the requirements for trade dress protection, as well as the available defenses, must be carefully navigated to ensure the proper balance between trademark law and other areas of law, such as patent and competition policy.

[^1]: 15 U.S.C. § 1125(a).
[^2]: Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209 (2000).
[^3]: Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 164 (1995).
[^4]: TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 29 (2001).
[^5]: Wal-Mart Stores, 529 U.S. at 210.
[^6]: 15 U.S.C. § 1125(a).
[^7]: Wal-Mart Stores, 529 U.S. at 210-11.
[^8]: Id. at 211 (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851 n.11 (1982)).
[^9]: TrafFix Devices, 532 U.S. at 32 (quoting Inwood Labs., 456 U.S. at 850 n.10).
[^10]: Id. at 29.
[^11]: Id.
[^12]: Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961).
[^13]: Talking Rain Beverage Co. v. S. Beach Beverage Co., 349 F.3d 601, 603 (9th Cir. 2003).
[^14]: 15 U.S.C. § 1117(a).
[^15]: Id.
[^16]: 15 U.S.C. § 1118.
[^17]: TrafFix Devices, 532 U.S. at 29.
[^18]: Id. at 33.
[^19]: 15 U.S.C. § 1115(b).