Exploring the Nebulous Boundaries of Trade Dress

However, some companies choose to rely heavily on trade dress to protect their businesses. For example, Sugarfina, a candy company targeting adult consumers, created unique bento-box style packaging as part of their branding. In the past few years, Sugarfina has filed suits against multiple competitors for infringing on their trade dress, one of which resulted in a recent $2 million settlement paid out by Sweet Pete, another candy company. Trade dress is also one of the forms of IP most heavily relied upon by franchisers such as chain restaurants or hotels. Often what comes to mind when you think about franchises are the trademarks and logos but other characteristics such as the retail establishment design and the workers' uniforms are associated with the business as well (i.e., trade dress).

Trade dress, like all trademarks, can be registered with the U.S. Trademark Office. Traditionally, trade dress covered the appearance or image of packaging — which can include both the containers or wrappings as well as the labeling. In order for something to be a protectable "trade dress" it must be: 1) non-functional; and 2) either by itself distinctive ("inherently distinctive") or be shown to have acquired distinctiveness by proof of "secondary meaning" (i.e., that it is associated solely with the entity providing the goods or service in question). The key inquiry is whether the trade dress serves as a unique source identifier for the goods or services. Classic examples of protectable trade dress in packaging are the Coca-Cola bottle or the Clorox bottle as well as Sugarfina's bento boxes.