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Frequently Asked Questions

What is the relationship between trade dress and trademark law?

Trade dress and trademark law are closely intertwined, as trade dress is a subset of trademark law. Trade dress refers to the visual appearance of a product or service that signifies the source of the product to consumers. It includes elements such as color, shape, size, configuration, and packaging. Trade dress is protected under the Lanham (Trademark) Act, which applies to both registered and unregistered marks. This means that the law does not differentiate between a trademark based on a word (like a brand or product name) and a trademark based on something visual (like trade dress). Trade dress is primarily concerned with the promotional aspects or image of a product or service, and does not apply to any aspect that is purely functional. For instance, the distinctive shape of a Coca-Cola bottle, which is instantly recognizable and does not serve a functional purpose, can be protected by trade dress. Trade dress can be registered with the U.S. Patent and Trademark Office (USPTO), although it is often not registered due to the costs involved, particularly the costs of proving distinctiveness. However, even if a trade dress is not registered, it is still protected under the Lanham Act. Registering it as a trademark provides additional protection in federal courts.

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