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Understanding trade dress as intellectual property

Understanding trade dress as intellectual property

| Apr 2, 2021 | Intellectual Property |

Businesses of all sizes rely on marketing in the physical and digital realm. Trade dress is the little extras that help consumers recognize a specific company’s offering. Many are more familiar with this concept under a different name: branding.

“Being the brand”

Branding is a big part of building an online audience and achieving success in a commercial setting. The creation and maintenance of a successful brand is as much work as any product design or top-notch customer service and can include things such as:

  • Specific fonts
  • Color schemes
  • Product identifiers
  • Sales techniques

For most of the protections of intellectual property, a company must register its trade dress. Even if your trade dress is unregistered, it may still have some legal protections if it is sufficiently distinct.

What is not trade dress?

However, to achieve status as trade dress and its associated protections, the feature or dress may not serve a function in the product. Per the ruling of a foundational case in this law, the line on functionality is specifically a feature that is “essential to the use or purpose that affects the cost or quality” of the item.

Is a social media presence trade dress?

While the law protects packaging and other pieces of intellectual property, a social media presence is different. It remains to be seen if the tone and voice of a social media presence can be considered a “sales technique.”

Defending your trade dress

With every company in every industry fighting for every market share point, it is vital to protect one’s unique edge aggressively. If you believe a given tactic or presentation gives you an advantage in your market, and someone else is using it, you may have to take action to protect yourself.