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Trade Dress Trademarks - Secondary Meaning, Inherent Distinctiveness, Packaging v. Design

Daniel Mills, Trademark Attorney

Posted Thursday, June 4, 2015 by Daniel Mills

The Supreme Court has found if trade dress or a feature of it “is essential to the use or purpose of the article or if it affects the cost or quality of the article,” then it is functional and not eligible for trademark protection. Functionality is merely the first hurdle to clear on the path to registering a trademark for trade dress.

The second hurdle depends on what category of trade dress is in question. In 2000, the Supreme Court divided trade dress in two categories:

In order to protect a product’s design trade dress with a trademark, the design must have acquired secondary meaning even if it is found to be inherently distinctive. Obtaining secondary meaning requires a period of time that is sufficient to create an association in the consumer’s mind between the design and the producer of the goods. Not only does this require time, measured in years, but the party seeking the trademark must show secondary meaning through extensive use, marketing, and promotion. Enough marketing and promotion to demonstrate that a connection exists between the design trade dress and the producer in the mind of the average consumer. As a practical matter, this is the realm of big companies and big advertising budgets.

On the other hand, in order to trademark a product’s packaging, an applicant may show either that the packaging is inherently distinct or has acquired secondary meaning. The bar for inherent distinctiveness is markedly lower than secondary meaning. First, there is no time element required; meaning that packaging trade dress can be found inherently distinct at first use. In addition, the very concept of packaging a product to make it stand out from the competition is fundamental to marketing and packaging and does not require extra expense that is not already spent to create a unique packaging. In other words, any creative packaging may be developed to be inherently distinct for little or no additional cost.

Of course there are legal tests associated with both of these concepts, but I will cover in a subsequent post.

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