Did you know that, in certain circumstances, you may file for trade dress protection for your goods and services even if you already own some trademarks covering those items? Trade dress can be registered for both goods and services as it can serve as a source indicator similarly to how traditional marks function, although it is not practically possible to use the ® symbol along with it.
Trade Dress for Goods
Wondering what trade dress for goods is? Trade dress for goods can be the 3D shape of the product or just a feature of it, or trade dress can be the packaging in which the product is being sold on the market. Sometimes TTB labels can also be registered as trade dress depending on factors such as manner of use and level of distinctiveness. If you are a seller of a product or a line of products that have a unique design or container, you may be able to seek to register the distinctive features that separate your product from competitors’ products.
Trade Dress for Services
How about trade dress for services? Businesses that deal with customers face to face in brick and mortar buildings may be eligible to register both the exterior and interior design of their commercial building provided that such a design serves a source indicating function. If you are providing services such as auto maintenance, dining, or tax preparation, for example, and customers are able to identify your business by the look and feel of its establishment, you may apply to register some or all of the designs that make your commercial setting look and feel unique.
Online service providers, on the other hand, may benefit from registering the overarching elements in the design of their software if paid users easily recognize and associate those features as emblematic of the service provider. Please note that if your software also comes in a box, it is further classified as a product. Consequently, product trade dress rules apply and may limit the circumstances in which you can register the distinctive portion of its packaging as a trademark.
Important Considerations Regarding Federal Registration of Trade Dress
Filing for trade dress for your goods and services can complement to your branding efforts and be a good part of your branding strategy. How broad of a scope of protection you choose to pursue is, however, often determined by your budget. Be aware that trade dress can sometimes coincide with different forms of intellectual property, for example, design patents. Trade dress can also be subject to additional government regulations that affect the manner of its use, for instance, TTB labeling laws. Lastly, because trade dress is generally more difficult to protect under the common law than if it is federally registered, it is wiser for non-traditional trademark owners to seek federal registration of trade dress matter than to rely on common law rights to fight infringement.