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What is trade dress and why should I protect it?

Over time, intellectual property law has grown to offer degrees of protection to a variety of ideas, presentations and products that are considered proprietary to their owners. At the heart of trademark law is the idea that, in a competitive marketplace, it's not enough simply to provide goods and services that are in some way superior to those of competitor; you must also help your clientele find and remember you. Otherwise, how will your customers know you're better?

A traditional trademark accomplishes this goal using an exclusive name, symbol or slogan to distinguish one product or service from similar offerings. At the same time, a wide range of other factors may also be incorporated into a company's overall branding. As an example, Coca-Cola distinguishes itself using the particular script in which its name appears and its "dynamic ribbon" logo. At the same time, the brand has developed an overall "feel" over time by using rounded shapes and messages presented consistently in red, white, black and silver.

These background elements -- the color scheme, the comparative size of objects, the preference for rounded shapes, and so on -- are generally too vague to be officially trademarked. They have to do with the brand's physical appearance, but they're not specific enough to count as a logo. Relative sizes, preferred shapes, colors, fonts and graphics, however are crucial to maintaining a consistent brand appearance, and are often referred to as "trade dress."

The U.S. Supreme Court recognizes effective trade dress as worthy of legal protection. In order for it to qualify, trade dress must be distinctive enough that its owner would have little trouble demonstrating that a competitor was attempting to mimic it.

Having a memorable brand name, logo and distinctive look is to your advantage in the marketplace, but the goal of trademark and trade dress protections is the public interest. Consumers need to be able to recognize products they've tried before, whether they liked them or not. If there was a problem, a consumer needs to know which company is responsible. Confusion among brands is not in the public interest.

That's the goal of the Supreme Court's "distinctiveness" test, in essence. If a competitor's mimicry of your trade dress might confuse consumers, your trade dress is probably distinctive enough to deserve protection.

Source: FindLaw.com, "Can I Trademark the Appearance of My Website?" accessed Nov. 21, 2014

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