Trade Dress 
Federal law provides protection and a claim for trade dress, which need not
be registered to receive protection. Trade dress protects the “look and feel” or
“image” of a product, but does not protect functional aspects of a product. In
other words, it protects the arrangement of the identifying characteristic or
decoration. For example, the shape of a Coca-Cola glass bottle is a famous
example of a protectable trade dress. The look of distinctive “product
packaging” that consumers associate with a particular company or source is also
an example of trade dress, such as the red and white color scheme on a container
of Campbell’s soup. Examples of trade dress include the front grill on the
Rolls-Royce automobile, the shape of a classic Ferrari sports car, or the round
wall-thermostat by Honeywell. Even a Mexican restaurant’s exterior may be
protectable as trade dress if the decor of the restaurant it is distinctive and
identified exclusively with that business.
Trade dress is a 'company's image' within the marketplace and one can actually
take someone to court if they try to present products that "look" like yours but
fall short of fraudulently representing their product as that of yours (though
there are, of course, rules for when trade dress is applicable).
Trade Dress is a trademark concept. The law relating to trade dress can be
traced to the doctrine prohibiting 'unfair competition'. Acting as a company
identifier, trade dress is essentially an unregistered product trademark under
Section 43(a) of the Lanham Act 15 U.S.C. 1125(a) of the United States. Under
the Act, the plaintiff in a trade dress action can seek trade dress protection
for whatever products or packaging it sees fit. It is an expansive concept.
Trade dress has been defined as "...a category that originally included only the
packaging, or 'dressing,' of a product, but in recent years has been expanded by
many courts of appeals to encompass the design of a product." [Wal-Mart Stores
vs. Samara Bros. 529 U.S. 205, 120 S. Ct. 1339 (2000)] Thus, trade dress protects
a product's image encompassing the total image or overall impression created by
the: 1) product and/or 2) its packaging.
The shape of a bottle containing shampoo can be trade dress. Similarly, the
shape or ornamental features of a chair, and its configuration, can constitute
trade dress. Thus, in some instances the trade dress is reflected in the
combination of packaging and labels and in another, it is the product
configuration itself that constitutes the trade dress.
To be registrable as a trademark or a service mark, the elements of the trade
dress must be capable of being defined so that the public knows the exact
parameters of the claimed exclusive right. If the trade dress constituting a
combination of elements is unique, unusual or unexpected, one can assume that it
will be automatically perceived by customers as an indication of origin, as a
trademark. However, if the trade dress is descriptive (necessary for the use or
purpose of the item), or not different from what others are using, it cannot be
considered as “inherently distinctive” and can be protected only on proof of
secondary meaning or acquired distinctiveness. (“Secondary meaning” , i.e.
“acquired distinctiveness” can only be obtained through heavy volume of sales,
advertising, extended duration of use, etc. which leads to the average consumer
in his mind being able to connect and recognize the trade dress as emanating
from a particular company or source).