Trade dress generally refers to product packaging or the overall general appearance and image of a product. Trade dress can be quite broad and has been used to protect product packaging, websites, buildings, and restaurant interior and exterior design, among others. In fact, the seminal case regarding trade dress, Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753 (1992), found Taco Cabana’s “festive eating atmosphere…with bright colors, paintings and murals” and certain architectural features protectable. Think of some of the fast food restaurant chains which you likely encounter frequently…McDonalds, Chipotle, Starbucks, etc. Now think of the interior and exterior of those establishments. Note a trend? They all have the same overall general appearance or total image, i.e. their trade dress.
Trade dress must be recognizable; or in legal terms, distinctive. If you were to see the curbed and ribbed shape of the classic glass Coca-Cola bottle sans the Coke label, you would likely still realize that it was a Coke product. If you walked into a Starbucks stripped bare of its corporate logo and trademarks, you would still recognize it as a Starbucks.
To merit protection, trade dress must be distinctive and not functional. Functional features of trade dress are those that are essential to the use or purpose of the article or features which affect the cost or quality of the article. For example, Taco Cabana cannot claim trade dress for the functional features of a plain front door, as that is a utilitarian article necessary for the restaurant’s operation.
Unregistered trade dress qualifies for protection under Section 43(a) of the Lanham Act, which protects “any word, term, name, symbol, or device, or any combination thereof” used “on or in connection with any goods or services, or any container for goods.”
Trade dress may also be registered under the Lanham Act on either the principal or supplemental register. Although registration may be costly, as one may generally expect an Office Action issued in response to a trade dress registration, it provides a presumption of distinctiveness.