What is Trade Dress? Trade dress is an overall appearance of a packaging or label that can be afforded intellectual property protections. According to
Black’s Law Dictionary, Trade Dress is defined as, “The overall appearance and image in the marketplace of a product or a commercial enterprise. For a product, trade dress typically comprises packaging and labeling. For an enterprise, it typically comprises design and decor. If a trade dress is distinctive and nonfunctional, it may be protected under trademark law.”
Trade dress protections do not have time limits. According to StopFakes.gov, the protections will typically last as long as the mark is used in commerce.
A trade dress is an overall package. For example, if you sell candles, your trade dress, if protected, would be the overall image of the candle: the color, texture, font, size, labeling, and graphics.
What is not a trade dress?
Trade dress is often mistaken for a trademark. A trademark is something entirely separate. A trademark would be the logo that is used for your candle. The trade dress would be the overall image of the candle, including the trademark.
A common misconception on the Amazon platform is that sellers believe that when granting trade dress protections, they are protected for each piece of their label individually. We have seen sellers be accused of infringement for simply selling the same product and having the same fruit on the bottle. This is not how it works.
Thinking back to our candle example, if your trade dress is a gray candle, cursive writing, your logo, and a picture of lavender, you will only have protections for that overall image. If someone else also has a candle with a picture of lavender on the label, this is not an infringement; it must be the overall appearance.
How to obtain trade dress protections?
Those wishing to obtain protections would need to file an application with the USPTO. However, not just anything is accepted. According to Richard Stim from NOLO.com,
“to receive protection, both of the following must be true:
- The trade dress must be inherently distinctive unless it has acquired secondary meaning.
- The junior use must cause a likelihood of consumer confusion.”
In order to make a trade dress inherently distinctive, it must be something that would not easily be used for many other items. For example, a candle with a picture of lavender is not inherently distinctive because that is not distinctive of a certain brand. The exception to this rule is if a trade dress has acquired secondary meaning. Secondary meaning means that when a person sees an image, they connect that image to something other that its original purpose.
For example, if you see the image of an apple with a bite in it, you would picture the company Apple and Apple Products. The leap in thinking from the original purpose of an apple (which would be fruit) to that being a company that sells electronics is the secondary meaning. In our candle example, the owner of the candle company would need to be so successful with their brand that every time someone sees a picture of lavender, they think of the company’s candle, and not of the flower.
How to Protect Yourself on Amazon?
Amazon does not allow trade dress infringement on their platform. The Amazon web page reads,
“TRADEMARKS: In addition, graphics, logos, page headers, button icons, scripts, and service names included in or made available through any Amazon Service are trademarks or trade dress of Amazon in the U.S. and other countries”.
Additionally, Amazon does not allow for any infringement on the platform. If you become aware of the infringement, then you can report the infringement on Amazon and Amazon will likely suspend that user.
What to do if you are falsely accused of trade dress infringement?
As stated earlier, many brand owners who obtain protection wrongfully enforce their protections on Amazon. We have seen sellers fall victim to baseless complaints and accusations countless times. The misconception is present on the online platform and has shown no sign of simmering down. Sellers will kick off competition any way they can, and sometimes they file merit-less complaints.
If you’ve been accused of trade dress infringement, it is important to speak to a lawyer. Legal issues should not be addressed by non-lawyer “consultants.”
Only an attorney can assess:
- If the accusation against you has any merit;
- Draft a legal opinion letter pointing out the complaint is baseless;
- Point out the legal liabilities should the brand refuse to withdraw their complaint;
- Stand up to another lawyer with any strength.
A lawyer will be able to assess if there actually was a likelihood of customer confusion. Thinking back to our candle example. If one party files a complaint against you for also selling candles with pictures of lavender on the label, this will likely not cause customer confusion. If so, then that would mean every single candle with a picture of lavender would be subject to confusion. This is not logical. Customers know that pictures of lavender are common on candles of all different brands and companies. There is not a likelihood of customer confusion.
However, each intellectual property issues are unique, and should only be handled by a legal professional who has the experience in handling these legal issues.