Trade Dress

Shopping on line can be easy, simple and save you lots of money. It can also take a lot of your time, frustrate you, and result in unwanted purchases. Now the same can be said for regular high street shopping, but with the vast opportunity presented by the Internet it will pay you to spend a few minutes reading this and understanding how to better optimize your Trade Dress shopping experience:

1. Compare - without doubt the biggest advantage that the Trade Dress offers shoppers today is the ability to compare thousands of Trade Dress at a time. This is a great thing, but not necessarily all the time! Too much can be daunting at times so take advantage of the great comparison sites and where possible let them do the hard work for you.

2. Research - if it has been said it will be on the internet. Ignorance is no longer a justifiable reason for buying the wrong thing. Take the time to research in detail everything that you could possible want to know about

3. Testimonials - don't know anybody that has bought a Trade Dress? Wrong! If the Trade Dress is good the internet will let you know. Use the Internet as a friend and get testimonials before you buy.

4. Questions - Got a question about Trade Dress then search the Forums, FAQ's, Blogs etc. Don't be afraid to ask .....

5. Reputation - Never heard of the company selling Trade Dress? Don't worry, no reason why you should know every company in the world, but you know someone that does! Use the internet to find out what people are saying about Trade Dress and build up a picture of their reputation for sales, returns, customer service, delivery etc.

6. Returns - still worried that even after all of the above your Trade Dress wont be what you want? Check out the returns policy. There is so much competition now that someone, somewhere is bound to offer the terms that you are comfortable with.

7. Feedback - happy with your Trade Dress then let people know, after all you are depending on others people input in your buying decision, so why not give a little back.

8. Security - check for the yellow padlock on the Trade Dress site before you buy, and the s after http:/ /i.e. https:// = a secure site

9. Contact - got a question about Trade Dress, or want to leave a comment then check out the sites contact page. Reputable companies have them and respond.

10. Payment - ready to pay for your Trade Dress, then use your credit card or PayPal! Be aware of companies that don't accept them, there may be genuine reasons but given the huge amount of choice you have when buying online there is no reason at all not to buy via credit card or PayPal.

Trade dress refers to characteristics of the visual appearance of a product or its packaging (or even the facade of a building such as a restaurant) that may be registered and protected from being used by competitors in the manner of a trademark. These characteristics can include the three-dimensional shape, graphic design, color, or even odor of a product and/or its packaging.

There are two basic requirements that must be met for trade dress protection. The first is that those features must be capable of functioning as a source indicator—identifying a particular product and its maker to consumers. In the United States, package design and building facades can be considered inherently distinctive—inherently capable of identifying a product. However, product design can never be inherently distinctive, and so such trade dress or other designs that cannot satisfy the 'inherent distinctivness' requirement may only become protectable by acquiring 'secondary meaning.' In other words, the mark may be protected if it acquires an association in the public mind with the producer of the goods.

Trade dress must also be nonfunctional in order to be legally protected; otherwise it is the subject matter of patent law. What is functional depends strongly on the particular product. To be nonfunctional, it cannot affect a product's cost, quality, or a manufacturer's ability to effectively compete in a nonreputational way. For example, color is functional in regard to clothing because that product is purchased substantially because of its color and appearance, but color is not functional on household insulation, which is purchased purely to be installed in a wall and is never seen.

Examples

Shape of the Coca-Cola bottle;
Front grill on the Rolls-Royce automobile;
Shape of a classic Ferrari sports car;
Round wall-thermostat by Honeywell

Legislation United Kingdom Trade dress can be protected as getup under the law of passing off in UK. Passing off is a common law remedy for protecting unregistered Trade Marks. Basically, passing off is connected with protecting unregistered Trademarks. Getup, packaging, business strategy, marketing techniques, advertisement themes etc. can also be protected under passing off.

United States Logos, symbols, and names of products and companies are protected under trademark law. Although it has limits, trademark law, in the United States, through the Lanham Act, also protects slogans, phrases, packaging of products, and even the appearance of the product itself.

Marks may be classified for the distinctiveness: generic, descriptive, suggestive, arbitrary or fanciful. Marks that are deemed suggestive, arbitrary, and fanciful are entitled to trademark protection because their intrinsic natures to identify a particular source of a product. In comparison, generic marks are those that refer to the genus of which the particular product is a species, for example: aspirin, thermos. These marks are not protectable as trade marks because the number of such appropriate terms is limited and all merchants are intented to be equally allowed to use such terms to describe their own goods when competing for customers. Lastly, marks that serve only a descriptive function in relation to a product may be protectable under trademark law as inherently distinctive.

India In view of the recent developments in trading and commercial practices and to give effect to important judicial pronouncements, a need for simplification and harmonization of trademark management systems was felt. The new Trade Marks Act, 1999, which came into force in September 2003 is the result of this realization.

The new legal definition of a trade mark under the Act consists of the shape of goods, packaging or combination of colors or any combination thereof. A package is now protected under the Act, which includes any case, box container, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper, and cork. Thus, the new definition of trademark in India broadly encompasses almost all the elements of trade dress under the US law.

Jurisprudence Under the Indian trademark law, any distinctive and identifying mark, which is capable of distinguishing the goods and services of one owner from that of another, may be utilized as Trademark and such marks are afforded protection under the law. The Trade Marks Act, 1999 is a reproduction of the UK’s Trade Marks Act 1994 as we follow the English Trade Mark laws from the beginning. Unlike the United States Lanham Act, 1946 the English Trade Marks Act, 1994 and the Indian Act, 1999 do not have provisions like section 43(a) (of Lanham Act) to protect un-registered trade dress or allow registration of trade dress which qualifies the tests of distinctiveness and source identifier.

Types

Package trade dress functions the same as a traditional trademark and is used by consumers to identify a company's products. Package trade dress can relate to a single product (appearance of wine bottle and label), or a line or family of products.

The configuration of a product itself can also serve as protectable trade dress. The Lanham Act protection of product configurations extends to the total image of a product including features such as size, shape, colour or colour combinations, texture, graphics or even particular sales techniques.

Infringement A trade dress registration is infringed by the unauthorized use of the registered trade dress, or of one that is confusingly similar to it, on the registered goods or services, or in certain circumstances on similar or dissimilar goods and services. This occurs when a company uses the trade dress of another company, which may result in confusion or deception of consumers. To prove trade dress infringement, a plaintiff must show 1) that the product is either inherently distinctive or has acquired a secondary meaning and 2) that there is a likelihood of confusion between plaintiff’s packaging and defendant’s packaging

Claiming trade dress protection To establish a superior right to a unique trade dress, the trade dress must indicate or be distinctive towards the business or product. This is accomplished by showing that the public associates the trade dress with a particular source. Examples of a trade dress would involve the coloring, shape and or the packaging of products. One may also indicate that a competitor's trade dress might resemble their company's trade dress, therefore creating a false sense of affiliation or collaboration between the two companies to the public.One can claim trade dress protection if the trade dress is distinctive and indicates the source of business. One can also claim trade dress protection if the public associates other products with the trade dress and believes the source to be the particular company, causing a likelihood of confusion.

Remedies In case of a registered trademark, a claim for trade dress infringement must be brought in Federal court under Section 32(1) of The Lanham Act. In case of an unregistered trade dress, infringement claim may be asserted under Section 43(a) of The Lanham Act.

The remedies for trade dress infringement are the same as those for trademark infringement, i.e., injunctions, recovery of damages in the form of the defendant's profits or the plaintiff's actual damages, and/or attorney's fees in "exceptional" cases.

A court may prohibit the trade dress of a product or service if it is too similar to the trade dress of a more established product or service. The protected trade dress must be distinctive and the competitor's trade dress use must be likely to cause consumer confusion.

Notable cases

The Yankee Candle Co. v. New England Candle Co., 14 F. Supp. 2d 154, 162 (D. Mass. 1998)
Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992)
Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000)
Best Cellars, Inc. v. Grape Finds at Dupont, Inc., 90 F. Supp. 2d 431 (S.D.N.Y. 2000)
TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001)