Trade dress
The look and feel of a product or place, not the name.
Packaging, product shape, or the layout of a restaurant can all function as trade dress if they identify the source and are not purely functional. Harder to register than a word mark, and usually needs proof that consumers recognise it.
Why it matters to your application
The part of a brand people recognise before they read anything - the shape of the bottle, the layout of the shop, the colour of the packaging. It can be protected, but the bar is high: it has to identify you as the source, and it must not be there because it works better that way.
In order
- Identify the elements that are genuinely distinctive rather than functional.
- Check the functionality problem honestly. A feature that makes the product work cannot be monopolised as trade dress.
- Gather evidence that customers recognise the look as yours - this is normally required rather than optional.
- Protect the name and logo first. Trade dress is a later, more expensive layer.
How this plays out
A drinks brand with a distinctive bottle silhouette seeks protection. The parts that are purely decorative may qualify; the parts that make the bottle easier to grip will not, because that is function rather than identification.
About trade dress
Can I protect my packaging design?
Potentially, if it is distinctive rather than functional and consumers associate it with you. It usually needs evidence of that recognition.
What does functional mean here?
A feature that exists because it works better - a shape that improves grip, a layout that speeds service. Function belongs to patent law, not trademark.
Is trade dress worth pursuing for a small brand?
Rarely as a first step. The name and logo give far more protection per pound, and trade dress makes most sense once the look is established and worth defending.
General information about USPTO procedure, not legal advice about your situation. Always confirm the status and deadlines on your own application in USPTO TSDR.
Others you will meet at this stage
Common law rights
Rights you get from using a name, without registering it.
Choosing a nameDead mark
A record that is abandoned, cancelled or expired.
Choosing a nameDescriptive mark
A name that describes what you sell. Hard to register.
Choosing a nameDistinctiveness
How strongly a name works as a brand rather than a description.
Choosing a name