Trade dress infringement is a form of infringement in which a product has an exterior design which mimics that of another product. This can include everything from the packaging of toys to the structure a restaurant is housed in. Companies can and do sue in cases of trade dress infringement to protect their intellectual property. Such cases can sometimes be challenging to try, especially if a company has not been aggressive about protecting its trade dress in the past.
The term “trade dress” refers to the look and feel of the product, and is sometimes described as its personality. This can include the product logo, but it also includes colors, arrangement, and other design elements. People quickly learn to recognize visual elements and associate them with specific products, and this makes trade dress valuable. One example of trade dress is the décor on the Coca-Cola line of products. These products are made with a distinctive font, logo, and red color which together make up the trade dress of the product. When people see these design elements, they assume that they are seeing something made by Coca-Cola.
Companies protect their trade dress because they are concerned about consumer confusion. In the example above, if ABC Soda Company starts making products which utilize elements of Coca-Cola's trade dress, this could be considered trade dress infringement. Imitation may be the sincerest form of flattery, but in this case it may be viewed as a deliberate and malicious attempt to confuse consumers into buying the wrong product.
In order to be viewed as trade dress, the look and feel of a product must meet several standards. The first is that it is truly distinctive and strongly associated with the parent company. The second is that it must be nonfunctional, serving truly as packaging or “dress.” For example, fluorescent strips on biking clothes are not trade dress because they are installed for safety. Such strips embedded in the packaging of a toy, on the other hand, could be trade dress because they are purely aesthetic in nature.
If a company suspects that a trade dress infringement has occurred, it can retain an attorney to bring it to court. Companies designing new product packaging should be aware that it's possible to infringe upon trade dress accidentally, and it is advisable to review new designs carefully to make sure that they do not tread on the toes of other companies. If a new design has suspicious similarities with colors, shapes, and other features associated with a rival company, it may be ruled infringement.