Trade Dress: Its Not Just How You Look!
John Wilson • Jun 01, 2019
Trade Dress & the Promotion of a Product or Service
Trade dress protection, like trademarks, was born out of the realm of unfair competition: that no person should be able to trade off the goodwill of another. Accordingly, an inherently distinctive trade dress can be registered as a federal trademark under the Trademark Act, affording a trade dress registrant a wealth of protection against imitating products. For a product, trade dress may be the packaging, the promotional displays, and even the shape or coloring of a product. For a service, it may be the presenting of the building facade, the interior decor, or even the environment in which a service is provided. Our Dallas trademark and trade dress attorneys can assist you in protecting your trade dress. For more information on trade dress, see our Trade Dress Practice
web page.
What Is Trade Dress?
Trade dress is the public commercial "look and feel" of a product or service, is source identifying, and distinguishes the product or service from others. It can include a wide array of components, such as color, size, design, shape and material used to package a product or offer services. Trade dress law and patent law occasionally can overlap as certain design configurations and shapes of a product may be both a trade dress and a potential deign patent.
Trade Dress Must Be Distinctive
For trade dress to be considered inherently distinctive, a court will require that a trade dress meet a level of distinctiveness. That it “must be unusual and memorable, conceptually separable from the product, and likely to serve primarily as a designator of origin of the product.” Duraco Products Inc. v. Joy Plastic Enterprises Ltd., 40 F.3d 1431 (3d Cir. 1994). Distinctiveness is the threshold for determining whether a product is capable of serving as a trade dress (i.e., capable of identifying a particular source). See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). A product that is immediately capable of identifying a particular source is considered an “inherently distinctive” trade dress; however, a product that is not “inherently distinctive” can still be considered a trade dress if it has developed a secondary meaning, which occurs when, “in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851 (1982).
In 2000, the United States Supreme Court in Wal-Mart Stores, Inc. v. Samara Bros., Inc., was presented the issue of whether a product design was capable of being inherently distinctive. Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000). In that case, Samara Brothers – a children’s clothing designer and manufacturer – sued Wal-Mart for allegedly selling “knockoff” copies of their clothes. The clothes at issue were not federally-registered trade dresses. The Supreme Court held that a product design could not be inherently distinctive; and, therefore, may only be protectable as a trade dress if it has acquired secondary meaning. To show secondary meaning in trade dress, one must show that in the public mind, the primary significance of the product feature is to identify the source of the product. The Supreme Court reasoned that a product’s design generally serves no purpose for source identification – the primary basis for providing trade dress protection. On the other hand, a product’s packaging (i.e., the overall look of the product, including color, shape, labels, etc.) may be protectable as a trade dress because it is capable of identifying the source of the product.
Functional Aspects Alone Do Not Qualify As A Trade Dress
Functional aspects of trade dress cannot be protected under trademark law. For instance, a package or product shape can lack protection as being “generic” if the trade dress is defined as a mere product function or is such a common design that it cannot identify any particular source. Accordingly, courts have routinely struck down common product configurations or themes (e.g., a grape leaf on a wine bottle) as generic and incapable of protection as a trade dress. See Stuart Spector Designs, Ltd. V. Fender Musical Instruments Corp., 94 U.S.P.Q.2d 1549 (T.T.A.B. 2009) (“the evidence overwhelmingly demonstrates that these configurations are so common in the industry that they cannot identify source.”); see also Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619 (6th Cir. 2002) (holding no designer can hold a monopoly on designs regarded by the public as the basic form of a particular item).
What Is Trade Dress Dilution?
In addition to a claim of trade dress, courts will allow claims to be made for trade dress dilution pursuant to Section 43(c) of the Lanham Act. 15 U.S.C. § 1125(c). Dilution is legal concept designed to protect against the weakening or reduction in the ability of a mark to clearly distinguish only one source. Dilution often comes by way of “tarnishment." Tarnishment is the degrading of the reputation of the mark through negative associations
or by impairing the distinctiveness of the brand by blurring that brand with a knock-off design.
Dallas, Texas Contracts Lawyer 
Types of Trade Marks
Dallas Family Law & Divorce Attorneys Deciding to divorce is a challenging and significant life choice. Once you've made that decision, there are many paths to consider, and Wilson Whitaker Rynell is here to help you navigate the best way forward. What distinguishes us from other Dallas family law firms is our exceptionally skilled team of family law practitioners and our commitment to delivering outstanding client-centered service. Whether through mediation or litigation, our family law attorneys in Dallas bring a depth and breadth of knowledge gained through years of successful practice. We also have board certified divorce lawyers so you can count on the highest standards of integrity, expertise, and legal proficiency from the divorce lawyers at Wilson Whitaker Rynell. Whether you're in Dallas, Plano, Frisco, Allen or any other Dallas neighborhood, you can trust our local family law firm to provide you with the support and guidance of a highly experienced team of family lawyers. Family Law Practice Areas Our dedicated team is focused on providing personalized and effective legal solutions tailored to each client's unique circumstances. We understand that family law matters can be emotionally challenging, and we strive to offer compassionate support while staunchly defending our clients' rights and best interests. With Wilson Whitaker Rynell, you can trust that you'll receive top-tier legal representation from a team that genuinely prioritizes your well-being. We specialize in a wide range of family law and divorce matters, ensuring comprehensive legal support for our clients. Our experience includes, but is not limited to, the following areas:
Understanding the Requirements for Patent Utility, Novelty, and Non-obviousness
Interview of a Child in Chambers by a Texas Court Divorces can be messy; even more so when children are involved. One pivotal question that is often asked is who will receive primary custody. The prospect of children speaking to a judge during a divorce case to help determine custody can be a controversial topic. On one hand, it aims to understand and prioritize the child's preferences and best interests. On the other hand, exposing children to legal proceedings can be emotionally taxing and stressful . When Can the Judge Talk to Children? During a nonjury trial or hearing, the court is required to privately interview any child 12 years or older, while interviewing a child under 12 is at the judge's discretion. This private interview helps convey the child's wishes regarding who should have primary custody. The judge can also conduct the interview independently or on the request of a party, amicus attorney, or attorney ad litem. While speaking to the child can help determine issues of possession, access, and parent-child relationships, it does not restrict the court’s authority to decide what’s best for them. However, in cases where a jury trial is underway, the judge is prohibited from privately interviewing the child on matters subject to a jury verdict such as which parent is granted conservatorship/primary custody. During the conversations, attorneys representing the parents, the amicus attorney, the guardian ad litem, or the child's attorney ad litem may be present. For children aged 12 and older, the court is required to record these interviews to ensure a thorough and accurate record is available as part of the overall case documentation. Inside the Judge's Playbook: What Gets Asked? The judge may ask open-ended questions about living arrangements, the child's relationship with each parent, and other aspects relevant to their well-being. Additionally, an interviewer’s nonverbal communication may not contribute to the making of a particular statement. James v. Texas DHS, 836 S.W.2d 236, 239-241, (Tex.App.—Texarkana 1992, no writ.). However, the child's testimony is just one piece of the puzzle, weighed alongside other factors such as parental behavior, home stability, and each parent's willingness to cultivate the child's relationship with the other parent. Importantly, if the judge during the interview has reasonable cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person , the the judge is obligated to shall immediately make a report. Tex. Fam. Code §261.101(a).
What is a Franchise Agreement? Businesses form franchise agreements when they want to share their business ideas and ventures with other entrepreneurs looking to be independent business operators themselves. The franchise agreement is a legal contract that establishes a franchisor-franchisee relationship to expand the franchisor's entrepreneurial ideas and values. The franchisor grants the franchisee the legal right to set up and operate a franchised business consistent with the terms of the franchise agreement. Under this agreement, the franchisee gains the license to use the franchisor’s trademarks, trade dress, business systems, operational manuals, and supply sources for offering and selling the franchisor's specified products and/or services. The franchise agreement is required to be legally included as an exhibit in the franchisor’s Franchise Disclosure Document, which must be presented to potential franchisees before any franchise offerings or sales are made. The federal trade commission publishes A Consumer's Guide to Buying a Franchise which is helpful for perspective purchasers' of franchises.
New FTC Rule Bans Noncompete Agreements in Employment Contracts
Beneficial Ownership Information (BOI) Form - New Filing Requirements for Legal Entities
Parental Alienation | Texas Child Custody Attorneys
The Wilson Legal Group are Dallas attorneys that specializes in Patents, Trademarks, Copyrights, Trade Secrets, Complex Litigation, Business/Corporate Law, Family Law and Real Estate Law. At the Wilson Legal Group, our clients are our focus. Our philosophy is simple and straight-forward: Understand our clients' needs, hopes, and interests in order to help them flourish. Our staff strives to build strong relationships with our clients in order to appreciate their best interests and help them achieve their goals.
Have an idea for a blog? Click and request a blog and we will let you know when we post it!
Let's talk about your legal issue
Wilson Legal Group P.C.
d/b/a Wilson Whitaker Rynell
(972) 248-8080 (Dallas) MAIN OFFICE
(713) 830-2207 (Houston) Appointment Only
(512) 691-4100 (Austin) Appointment Only
For more information on how we can assist in your intellectual property, commercial litigation, divorce, or other personal needs, let us know how we can help you:
How Can We Help You?
Disclaimer:
This form does not establish an attorney-client relationship, and should only be used to contact the firm about scheduling a call or meeting. No confidential or sensitive information should be sent using this form.
We represent clients nationwide, including Dallas, Austin, Houston, and other Texas areas such as Fort Worth, Arlington, Carrollton, Plano, Allen, Lewisville, Flower Mound, Irving, Denton, McKinney, North Richland Hills, and all cities within Dallas County, Tarrant County, Collin County, and Denton County.
OFFICES
ABOUT
CONTACT
BLOG
Wilson Whitaker Rynell
16610 Dallas Parkway, Suite 1000
Dallas, Texas 75248
972-248-8080 (MAIN)
972-248-8088 (FAX)
info@wrrlegal.com (E-MAIL)