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Is your company’s decor part of its intellectual property?

Nowadays, it can be difficult to convince potential customers to walk through your doors. Having a decoration scheme that sets your venture apart from others can do the trick, provided your company’s decor is unique, stylish and memorable. Naturally, you probably have to invest considerable time, money and effort into creating the right scheme.

After you go through the hassle of developing your company’s decor, you do not want one of your competitors to steal it. You also do not want another company to confuse your customers. Because your company’s decor is likely part of its intellectual property, you can take steps to protect it from infringement.

What is trade dress?

In simple terms, your company’s trade dress is the different facets you use to market your product or service. It may include your business’s decor, layout, packaging and color schemes. According to the U.S. Patent and Trademark Office’s Trademark Manual of Examining Procedure, trade dress must be inherently distinctive and nonfunctional to qualify for trademark protection.

What is inherently distinctive?

Obviously, it is not possible to trademark trade dress that is generic in nature. It is equally impossible to apply for trademark protection for trade dress that matches or closely resembles another company’s protected trade dress.

Inherently distinctive trade dress has a shape, design or scheme that is unexpected, unique or original. This type of trade dress is protectable, as it has an indicia of origin for your customers and others.

What is nonfunctional?

The nonfunctional part of the trade dress equation simply means your trade dress is not essential to the delivery of your product or service. This effectively means you could still do business without the trade dress. On the other hand, if your trade dress is functional, it may not be protectable.

Ultimately, if you have a nonfunctional and inherently distinctive trade dress, applying for trademark protection guarantees someone else does not capitalize on your ingenuity and hard work.

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