Protect You & Your Business By Understanding Trade Dress

Next time you are at a grocery store, look at the drinks in the refrigerators by the cashiers. You might notice that the bottles are shaped differently. The various shapes, sizes, and color combinations vary. Although this is something you have likely seen, you might not have noticed the disparity in bottle shapes until now.

Why are they shaped differently? Regardless of whether you realized it, the look of a product is a way to distinguish it from others. This is at the heart of what trade dress is.

Beyond Bottle Shapes

Stores and services have methods for conveying their brand as well. You could see pictures of the inside of specific stores and immediately know the company’s name. Close your eyes and imagine what an Apple store looks like.

Businesses invest time, resources, and money into making their product and branding unique. Can people copy your product’s design and sell it openly? That will depend on your understanding and utilization of trade dress.

Registering Trade Dress

It is highly advisable that you seek the help of an attorney when registering a trade dress. But it is done through the United States Patent and Trademark Office (USPTO). There are mandatory stipulations to register your trade dress successfully:

  1. Your trade dress is unique to your product, and it is nonfunctional.
  2. The trade dress has taken on a second meaning.

Why does it have to be nonfunctional? If something is essential to use the product, it would not be eligible for protection due to functionality. For example, the Coke bottle’s opening is required because it allows someone to drink it. But the shape, colors, and text are not functional. These features exist to make the product distinguishable.

Even if the words on the Coke bottle were changed, but the shape, texts, and colors were the same, would you still see it as a Coke bottle? Probably. And that’s the point. This is what the second meaning pertains to. The design and features of the product identify the product itself.


Branding is a means to convey to the customer the source of what they are buying. Because large businesses invest significant amounts of money into advertising, research, and marketing, the products should be protected—if they are unique. Their values and product quality are tied to branding. When you buy a Coke, you expect it to taste a specific way.

To have another business closely copy your packaging, design, and aesthetic puts your product at risk. What if their product is inferior, but people mistakenly assume it is yours? Trade dress is a means to prevent that.

Bashirah Martin, PLLC Attorney at Law

If you need a trusted legal advisor to help you protect your intellectual property, contact Bashirah Martin, PLLC, today and schedule a consultation. There’s more to your business than the products you create or the services you provide. Bashirah Martin, PLLC, is here to help you protect it.

Categories: Business