The artistic elements or aesthetics of a product or service is often just as important as the product itself. Trade dress may include various aspects of the product’s packaging, shape, configuration and other design elements and should be registered with the U.S. Patent and Trademark Office to protect against infringement. When another company uses your trade dress for its own products or services, the company may be engaging in trade dress infringement.
To prove trade dress infringement, you will need to prove the following:
- The trade dress was primarily not functional
- The trade dress was inherently distinctive
- There was a high likelihood of customer confusion, in that customers would confuse your product/service with the infringing party’s product
If you think someone may have infringed on your trade dress, here are some potential steps to take to remedy the issue:
- Consult with an attorney specializing in intellectual property law that can review your trade dress and determine whether there is infringement.
- You and your attorney should gather evidence that indicates trade dress infringement (e.g., photos or advertisements).
- Send a cease-and-desist letter to the infringing party telling them to stop using your trade dress by a certain deadline.
- If they refuse to stop or ignore the request, you can file a lawsuit against them to request an injunction and seek damages.
- Once the injunction is granted by the court, continue to keep an eye out for further infringement.
Trade dress infringement can cause significant harm to your company’s finances and reputation. Businesses involved in an intellectual property dispute can consult with an attorney for advice on how to proceed.