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What is 'trade dress?'

One form of intellectual property (IP) that causes considerable confusion is "trade dress." In the past, it tended to refer to the way a product was packaged and displayed when it was sold. Its label, box and point-of-sale (POS) displays unique to a product were considered its trade dress.

However, it's been more broadly defined in court rulings include a product's overall image or appearance. One ruling said that it "may include features such as size, shape, color or color combinations, texture, graphics or even certain sales techniques."

Businesses often neglect to seek trade dress protection because they don't think they can. Trade dress registration can be granted to something that contains a number of items that are commonly used, yet when combined are distinctive. As stated in one court ruling, "Where the plaintiff's overall trade dress is distinctive, the fact that it uses descriptive (or generic) elements does not render it unprotectable."

Trade dress doesn't have to refer to a specific product. However, it's been used to protect the unique look or "product configuration" of everything from the Sunbeam American Classic Mixmaster to Ferraris.

It can be used for any number of things, including unique restaurant atmospheres like that at Fuddruckers and golf holes, such as signature holes at famous golfing destinations like Pebble Beach and Pinehurst. Colors, scents and sounds can be protected as trade dress. NBC's signature three-chime sound is an example of the last one.

If you're not sure whether you have intellectual property that can and should be protected as trade dress, you're not alone. It can be difficult to determine, and many requests for trade dress registration are denied. An experienced attorney can help you determine if you should seek this protection and help you take the appropriate steps.

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