Regardless of where you drive in Florida, you probably have noticed that many commercial spaces look about the same. Businesses that stand out from the competition, of course, often have a unique appearance. The most effective companies help customers immediately recognize their product or service.
If you have spent valuable resources developing a one-of-a-kind scheme for your product or service, you want to receive the full benefit of your investment. Naturally, if another business takes your look, that may not happen. Even worse, your customers may confuse you with your competitors.
What is trade dress?
Trade dress is everything that gives a product or service its unique look and feel. Your company’s trade dress may include a special layout, custom decor or even novel packaging. Fortunately, like with your company’s logo and slogan, your trade dress is protectable under federal trademark law.
What trade dress is trademarkable?
As the U.S. Patent and Trademark Office notes, for trade dress to be eligible for a trademark, it must be both distinctive and non-functional.
Distinctiveness simply means your trade dress is materially different than that of other businesses. If your trade dress does not pass the distinctiveness test automatically, it is worthwhile to consider whether it may have acquired a secondary meaning. Specifically, your customers may have come to associate your trade dress with your venture.
For trade dress to satisfy the non-functional component, it must not be essential to the product or service. For example, while an ordinary jug that holds your product is likely functional, a jug with a unique shape may qualify for trademark protection.
Ultimately, by pursuing trademark protection for your company’s trade dress, you keep your competitors from usurping the customers you have worked hard to find and retain.