Trade Dress: Protecting the Total Image of Your Product
Trade dress is the distinctive appearance given to a product by a seller. Trade dress helps customers recognize the company’s products and distinguishes them from competing products and sellers. A commonly cited example of trade dress is the wavy curved shape of the glass bottle traditionally used to sell Coca-Cola. The appearance of that bottle, even without the name Coca-Cola visible, brings Coca-Cola’s products to the minds of consumers.
U.S. law allows a seller to prevent competitors from imitating its trade dress in such a way as to confuse customers about the source of a product. A seller that wants to protect its trade dress in court must be able to show that the trade dress consists of non-functional features that are distinctive (or have come to be associated by the public with a particular seller) and that another person is using similar features that are likely to confuse customers.
“Non-functional” means the product feature has no purpose (other than to identify the source of the product). The feature is arbitrary and could be changed without affecting the usefulness of the packaging or the product. For example, in a 2024 Minnesota federal lawsuit, the manufacturer of Pedialyte claimed that its competitor Revitalyte was copying Pedialyte’s coloring of the product, cap, label size and orientation, the indentation between the bottle’s ribs, and the shrink-wrapped cap. The court initially decided that these matters might qualify as trade dress, depending on the evidence that was provided to support the claim. The U.S. Supreme Court has explained that functionality is anything that would put competitors at a “non-reputation-related disadvantage” if they were prevented from using it. A feature that is essential to the use or purpose of the product, or that affects the cost or quality of the product, is functional. Id.
It’s important to remember that trade dress is about the “total image of a product, the overall impression created, not the individual features.” A competitor can’t get around the protection given to trade dress by picking apart individual components of another seller’s trade dress and modifying each small part to create a total image that still confuses customers about the source of the product.
Interestingly, trade dress disputes do not necessarily need to involve competitors selling precisely the same products. In a case from 2004, a computer manufacturer used black-and-white cows and cow spots to advertise its computer products, spending significant amounts of money on advertising to promote the association between cow spots and its computers in the minds of the public. Later, a stuffed animal company began selling a toy cow with a black-and-white spotted design reminiscent of the computer company’s trade dress. The computer company successfully sued to prevent the stuffed animal company from selling the cows.
Next Steps: Contact PDK for Assistance
If a competitor is imitating the appearance of your product and confusing customers, you may have a claim to stop them. At Parker Daniels Kibort, we can help you assess the situation and your rights and develop a plan for how to protect them.
Attorney Joseph Pull of Parker Daniels Kibort focuses on business and complex commercial litigation. He seeks to deliver innovative solutions for clients navigating challenging legal disputes such as trade dress matters.
Parker Daniels Kibort is a premier litigation firm in downtown Minneapolis with extensive experience representing plaintiffs and defendants in high-profile disputes. If you are considering filing a trade dress lawsuit, we can provide wise counsel and strong representation. For more information, contact us at 612-355-4100 and go to www.parkerdk.com.
