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. [vague] These characteristics can include the three-dimensional
shape, graphic design, color, or even smell 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.
