What is Trade Dress?

Trade dress is form or type of trademark.  The phrase, "trade dress" is a technical term that refers to the over all look and feel of a product or packaging, and may include features such as size, shape, color or color combinations, textures, graphics, or even particular sales techniques.  

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.