When you are looking to put a piece of your intellectual property on the market, you may be concerned about safeguarding the use of its name from fellow competitors. You must be equally concerned about guarding its look from potential copycats. This is where trade dress protection comes into play. Continue reading to learn what you should do to protect your trade dress and how an experienced New Jersey trademark lawyer at The Ingber Law Firm can help you through this application.
What is a trade dress?
First of all, a trade dress is considered the overall look of your piece of intellectual property. This may be made up of distinctive characteristics like your product’s size, shape, color, texture, or graphics. For example, you may be familiar with the shape, color, and pattern that makes up the Oreo cookie. Similarly, you may be able to instantly recognize a Coca-Cola glass bottle without even looking at the label.
The elements that make up a trade dress are supposed to be entirely non-functional. Rather, the purpose of a trade dress is so that you may catch the eye of potential consumers while simultaneously distinguishing yourselves from similar products on the market.
What should I do to protect my trade dress?
You must understand that your trade dress may be considered a different piece of your intellectual property than your trademark. Thus, you must go about protecting your trade dress separately. And such protection is made possible by The Lanham Act, otherwise known as the primary federal trademark statute of law in the United States. More specifically, this Act protects your trade dress if it serves the same source-identifying function for your product as your trademark does.
And while your trade dress may be protected without registration, it may still be in your best interest to do so. With that being said, you may apply to register your trade dress with the United States Patent and Trademark Office (USPTO). This may be possible by submitting your petition electronically via the USPTO’s Trademark Electronic Application System. And in this petition, you may have to argue that the following circumstances are true:
- The use of your trade dress by a competitor may create confusion among your potential consumers.
- The use of your trade dress is inherently distinctive:
- It is considered suggestive, fanciful, or arbitrary within trademark law.
- It is memorable or notable among your potential consumers.
- It serves as an identifying source of your product.
- It is conceptually different from the function of your product.
The first step to protect your trade dress is to make a phone call. Without further ado, pick up the phone and contact a skilled Essex County, New Jersey intellectual property lawyer from The Ingber Law Firm today.