Like a trademark, trade dress rights vest upon first use under the common law, and a trade dress owner is entitled to register the trade dress at the state and federal level. In addition, a trade dress owner can pursue a trade dress infringement action against a second comer who adopts a trade dress that is likely to cause consumer confusion as to the source of the goods or services provided by the common law trade dress owner.
I was lucky to have represented El Diablo, Inc. the owner of the Pesos restaurant in Seattle in a trade dress infringement lawsuit against the owner of the Matador restaurants. The case settled favorably after five weeks of trial. This is a great war story. If you want to learn more, send me a comment below.