When we think about intellectual property (IP) we think about copyrights, trademarks, or patents. Trade dress is never the first thing that pops up during heated IP law debates (yes, at Traklight we have heated IP law debates). Trade dress is often overlooked but worth understanding. It is the protection afforded for a particular form of packaging used by a company that attains secondary meaning.
But a form of packaging that has been used by a company in the industry for a number of years alone cannot be protected under trade dress. Some uniqueness must be present and the packaging must not be functional. Furthermore, the packaging, coloring, so on and so forth, must confuse and mislead a consumer. Under Section 43(a) of the Lanham Act, trade dress is protected even if it is not formally registered. Although it is distinguishable from trademarks, service marks and trade names, a number of companies opt to trademark their trade dress, such as Coca-Cola, as it provides a number of additional benefits.