The requirements to protect unregistered trade dress are well established. Still, it’s worth revisiting this subject from time to time, whether for trademark novice or pro.
At one time, trade dress only included packaging or “dressing” of the goods, but modern courts have pretty much universally expanded the meaning of trade dress to include the design of a product. For example, the shape of the Coke bottle, the red sole of a Christian Lorboutin shoe, the shape of the Weber BBQ kettle. See, Stuart Hall Co., Inc. v. Ampad, 51 F.3d. 780 (8th Cir. (1995)). Unregistered trade dress is protected. If not registered, the burden is the owner’s to prove if the trade dress meets all requirements to make it protectable. Lanham Act Section 43(a)(3) specifically refers to a civil action for trade dress infringement for trade dress not registered on the principal register. If registered on the principal register, it is presumed that the trade dress is distinctive, with the owner having demonstrated secondary meaning to the examiner. Continue reading