Understanding Trade Dress: Protecting the Visual Identity of Your Brand

With the explosion of social media marketing and sales, a product’s visual identity is often as important as the product itself. This is where trade dress—a form of intellectual property protection—comes into play. But what exactly is trade dress, and how does it safeguard your brand’s unique look? Let’s break it down.

What Is Trade Dress?

Traditionally, trade dress referred to the overall appearance of labels, wrappers, and containers used in packaging products. Over time, this definition has expanded to encompass the total look and feel of a product, including its design, shape, size, graphics, color, and texture.

Essentially, trade dress is the visual image presented to customers, which indicates the source of the product. It’s a powerful tool for building brand recognition and protecting that recognition from imitators.

Iconic Examples of Trade Dress

Examples of trade dress include:

• The cover design of PEOPLE magazine.
• The distinctive menus and decor of a themed restaurant.
• The iconic “G”-shaped frame of a Gucci watch.
• The fish-shaped design of Goldfish crackers.
• Maker’s Mark Distillery’s signature red dripping wax seal.
• Tiffany’s signature Little Blue Box.

Each of these examples showcases how trade dress can set a product apart and create a lasting impression in the consumer’s mind.

A Landmark Case: Coca-Cola Co. v. Koke Co. of America (1920)

One of the earliest and most influential cases involving trade dress was Coca-Cola Co. v. Koke Co. of America. In the early 20th century, Coca-Cola was already a household name, synonymous with its distinct formula and iconic branding. However, its success attracted imitators, including the Koke Company of America, which began selling drinks with similar names, packaging, and branding to capitalize on Coca-Cola’s popularity.

Coca-Cola argued in court that the imitators were causing consumer confusion and damaging its brand by mimicking its trade dress—the unique name, logo, and packaging associated with Coca-Cola. The Koke Company countered by claiming that the name “Coca-Cola” was misleading since the product no longer contained cocaine, as it had in its original formula. They argued that the trademark was invalid and unworthy of protection.

The U.S. Supreme Court ultimately sided with Coca-Cola, ruling that the company’s trade dress—even without cocaine in the formula—had acquired a strong association with its quality and identity. This landmark decision upheld Coca-Cola’s trademark and underscored the importance of protecting trade dress to prevent brand dilution and consumer deception.

Why It Matters:

This case laid the foundation for modern trade dress law, asserting that the look and feel of a product’s identity can be protected. The principles established in this case continue to influence how brands safeguard their unique identity in the marketplace today.

Why Is Trade Dress Important?

Trade dress serves as a protectable intellectual property interest, ensuring that consumers aren’t misled by products that imitate another’s appearance. This protection prevents consumer confusion and helps maintain the integrity of your brand’s visual identity.

Trade dress protection can be formalized through registration with the United States Patent and Trademark Office (USPTO), though registration is not required to enforce trade dress rights.

Proving Trade Dress Infringement

If you believe your trade dress has been infringed, you must prove the following three elements:

• Distinctiveness:

The trade dress must be inherently distinctive or have acquired distinctiveness through secondary meaning. This means consumers associate the design or elements with your brand.

• Likelihood of Confusion:

The infringing design must create a likelihood of confusion among consumers as to the source, sponsorship, or affiliation of the product. This doesn’t require the two designs to be identical but rather to create a similar overall impression.

• Non-Functionality:

If your trade dress is not registered, you must demonstrate that the elements are non-functional—they serve only to create consumer recognition and not a utilitarian purpose. For registered trade dress, the burden shifts to the defendant to prove functionality.

Remedies for Trade Dress Infringement

If infringement is proven, the following remedies are available:

• Injunctive Relief: A court order requiring the infringing party to cease using the trade dress.
• Monetary Damages: Compensation for any losses resulting from the infringement.

Protect Your Trade Dress

Trade dress is a critical aspect of intellectual property law, helping to ensure that your brand’s unique look remains unmistakable and protected. If you suspect that your trade dress rights are being infringed, it’s essential to seek legal counsel promptly.

Our experienced intellectual property legal team is here to guide you through every step of the process, from registration to enforcement. Let us help you secure and protect the unique visual identity of your brand.

About the Author

Mark F. Warzecha is an attorney focused on intellectual property prosecution and litigation. He manages extensive intellectual property portfolios both domestically and internationally, providing clients with strategic guidance to protect and maximize their business assets. Mark advises a diverse range of clients, from entrepreneurs to corporations, offering legal solutions in trademark and patent infringement, unfair competition, domain name disputes, trade secrets, and brand protection. He is a recognized authority in his field, frequently speaking at industry events and contributing to legal publications on intellectual property issues. Outside his legal practice, he is a founding board member of the No Bad Days Foundation, supporting children with disabilities, and a passionate fisherman who has achieved a lifetime grand slam catch.