Trade dress must be nonfunctional and distinctive to be protectable.

 

Trade dress tends to be forgotten within intellectual property law. Trade dress is similar to a trademark, but different. It can be protected through federal registration, but does not have to be.

To be protectable, trade dress must be nonfunctional and distinctive. A great example of nonfunctionality is seen at right. The shape of the Mrs. Butterworth's pancake syrup container is completely nonfunctional. In other words, the shape of the bottle serves no purpose when a consumer pours the syrup on food.

Nonfunctional trade dress will usually be distinctive and thus protectable. If a company does not protect its trade dress, however, nonfunctional trade dress could be determined indistinct. For instance, see the Sue Bee Honey container at left. Much like the Mrs. Butterworth's bottle, the shape of the bottle serves no purpose when a customer pours honey on food. Provided it is source-identifying, the honey container would also be distinct and thus protectable.

By itself, the honey bottle is distinct, but there is a Des Moines barbecue restaurant that stores its barbecue sauces in empty honey bottles and serves them to customers. Allowing another company to do this diminishes the likelihood that you have protectable trade dress in a court of law, because you are allowing another company to be associated with your honey containers.

On trade dress: Texas Roadhouse example.

The restaurant Texas Roadhouse is alleging trademark and trade dress infringement against Amarillo Roadhouse and Texas Corral, restaurants operated in Michigan and Indiana. Although I have discussed trademarks and trademark infringement elsewhere on this blog, I have not done so with trade dress.

Trade dress refers to the visual characteristics of packaging, décor, shapes, designs or site layout. Trade dress can be registered as a trademark if it is source-identifying and otherwise meets the requirements of a trademark, but it is usually protected without registration. Additionally, the trade dress must be nonfunctional in order to be protected. For instance, the décor and design of the Cheesecake Factory may be protectable as trade dress; but to the extent that any of that décor or design is functional (e.g., relating to shelter or architecture), it is not protectable.