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This article is written by Iqra Rasheed of Aligarh Muslim University, Aligarh, an intern under Legal Vidhiya


In the fiercely competitive world of consumer goods, a product’s design is more than just aesthetics—it’s a statement of brand identity, a visual language that speaks to consumers. A product’s visual identity often speaks volumes before a single word is spoken. From the unmistakable silhouette of an iPhone to the iconic red soles of Christian Louboutin shoes, the aesthetics of a product are not just about beauty—they’re about brand recognition and consumer loyalty. Yet, in this realm of creative ingenuity, legal frameworks must also play a role in safeguarding innovation. This is where the concept of trade dress protection steps in, safeguarding the unique design elements that set a product apart in the marketplace, delineating the boundaries and preserving the uniqueness of product design. From the elegant curves of luxury cars to the distinctive packaging of designer perfumes, trade dress protection plays a crucial role in shaping the landscape of product design.


Trade dress, Product design, Distinctiveness, secondary meaning, non-functionality


Originally, trade dress only referred to how a product was packaged and labeled. In cases of unfair competition, companies were prohibited from deceptively presenting their products to mimic those of another brand. However, in the past two decades, federal courts have expanded the definition of trade dress to include the actual shape and design of the product. They have recently made it easier to qualify for trade dress protection, thus extending the safeguard to product designs. This shift has essentially created a new kind of intellectual property specifically for product designs.

With trade dress rights in hand, a company can block competitors from selling products with similar designs. This has led federal courts to establish a potent form of intellectual property that doesn’t require strict standards for protection, provides exclusive rights, has no expiration date, and restricts fair competition. Although the courts justify protecting product designs as trade dress by claiming it prevents consumer confusion, some opinions suggest a deeper aversion to competition through imitation.

Described by one commentator as a “fear and loathing of copycats,” courts have shielded product designs from being copied by “pirates,” “unscrupulous competitors,” “rip-off artists,” and “average thieves.”[1] Product design plays a crucial role in our economy. The way a product is designed adds to its attractiveness and can significantly impact its success in the market. It is essential to promote and acknowledge innovative design.


Trade dress represents a form of intellectual property rights safeguarding the distinct visual appearance of a product or its packaging. It is commonly utilized to preserve the unique identity and character of a brand or product, aiding consumers in recognizing and distinguishing it from similar items. This encompasses the overall design and aesthetic of a product, its packaging, and even its presentation or arrangement. The primary objective of trade dress is to inhibit competitors from producing products or packaging that closely resembles the protected item, which could unjustly capitalize on the original product’s reputation and goodwill.

Within intellectual property law, trade dress holds significance as it shields the exclusive design and appearance of a product. This is crucial for businesses, as the individuality of their products’ design can enhance their visibility in the market and establish a strong bond with consumers. Moreover, trade dress serves to safeguard consumers by ensuring they can readily identify and differentiate the products they buy, thus preventing confusion and shielding them from purchasing counterfeit or substandard goods. Additionally, trade dress aids businesses in safeguarding their investments in branding and product design by thwarting competitors from unfairly leveraging the reputation and goodwill of their products.Top of Form[2]


Obtaining trade dress protection can present challenges, particularly in proving the distinctiveness of a design. Courts often analyze whether the design is truly unique or merely a functional necessity. This was exemplified in the landmark case of Wal-Mart Stores, Inc. v. Samara Brothers, Inc. (2000), where the Supreme Court emphasized the importance of inherent distinctiveness for trade dress protection.

Other than distinctiveness, consistent utilization and protection are equally pivotal elements. Sustaining ongoing use of the design in business operations and safeguarding it against infringement are vital for upholding its safeguarded standing. Neglecting these actions could diminish or potentially annul the trade dress protection.

In India, the extent of trade dress safeguarding is outlined in the Trade Marks Act of 1999. This Act offers legal defense for trade dress that is distinctive and able to differentiate the products or services of one individual from those of another. This implies that trade dress must possess uniqueness and not merely describe the products or services it is linked to; it must also not serve a functional or indispensable role in the usage of these products or services. If trade dress satisfies these conditions, it is eligible for protection under Indian legislation.Top of Form[3]

In the United States, trade dress protection is outlined in Section 43(a) of the Lanham Act. This provision describes trade dress as the complete visual appearance of a product, encompassing aspects such as size, shape, color combinations, and more. It is available for both registered and unregistered forms of trade dress. (A registered trademark is a symbol, word, etc., used by a company and officially registered under the Trademarks Act 1999. An unregistered trademark refers to a symbol, word, etc., used by a company but not formally registered.)

To obtain trade dress protection, the trade dress must be distinct, uncommon, or widely recognized by the public.[4]


To qualify for trade dress protection, specific criteria regarding a product’s appearance must be met. Below are the primary factors that dictate eligibility for trade dress safeguarding:

1. Distinctiveness is the initial prerequisite for trade dress protection. This stipulates that the appearance of the product must possess a distinctive or singular quality. In essence, the product’s design or configuration should be able to identify and set it apart from other similar products in the market. For instance, the iconic shape of the Coca-Cola bottle or the distinctive design of the Apple iPhone both qualify for trade dress protection owing to their distinctiveness.

2. Non-functionality is a key aspect of trade dress protection, wherein features of a product that serve a functional or essential purpose are not eligible for safeguarding. Put simply, if the design or configuration of a product serves a practical function rather than purely acting as an identifier of its source, it cannot be protected as trade dress. For example, the shape of a computer mouse designed ergonomically for user comfort might not qualify for trade dress protection.

3. Secondary meaning is another requirement for trade dress protection, indicating that a product’s appearance must have developed a secondary association in consumers’ minds. This association links the product’s appearance to its source or origin, illustrating that the product’s appearance has become synonymous with the brand or company behind it. Notable instances include the iconic red soles of Christian Louboutin shoes or the distinctively blue Tiffany & Co. Jewelry boxes.Top of Form

In a prominent instance, Apple Inc. effectively secured trade dress protection for the distinct design of its Apple Store. The company contended that elements such as the minimalist arrangement, glass facades, and distinctive product showcases formed a recognizable trade dress identifying Apple as the origin of the products and services available in the store. The court concurred, awarding trade dress protection to Apple’s store design.

The qualification for trade dress protection stands as a pivotal aspect for any business aiming to protect the distinct appearance of its products. By comprehending the prerequisites and adhering to the guidance outlined earlier, businesses can adeptly navigate the process of trade dress protection, guaranteeing the enduring preservation of their brand’s visual identity.[5]


Trade dress generally pertains to the visual presentation of a product or its packaging. Initially, trade dress protection was limited to a product’s packaging; however, it has expanded in certain cases to encompass the product’s design and form. For trade dress to be eligible for protection, it must be non-functional and distinct. As per the United States Supreme Court precedent, trade dress in a product design cannot inherently be distinctive; it must exhibit secondary meaning. Conversely, trade dress in a product’s packaging can inherently be distinctive without the need to demonstrate secondary meaning.

Secondary meaning refers to the mental association in the minds of buyers and potential buyers, linking products associated with the mark (or product) to the same source. The primary method to establish that trade dress in a product design has acquired secondary meaning is through survey evidence or testimony from actual consumers.

To effectively establish secondary meaning in a product design, a company would need to conduct an extensive advertising campaign, reaching a broad consumer base, with advertisements explicitly prompting consumers to “look for” the specific aspects of the product design claimed as elements of its trade dress. If a product possesses non-functional elements that truly set it apart, a company can cultivate recognition around those features by guiding customers to seek them out during purchases.

Even if a company can demonstrate that its product design has indeed acquired secondary meaning, the elements in the product design considered as its trade dress must be non-functional. The requirement of non-functionality is what sets trade dress protection apart from patent protection. Utility patents are available for a product’s novel utilitarian (useful) features. If a product design feature serves a useful purpose, it cannot be protected as trade dress.

The rationale behind the non-functionality requirement is grounded in the concept that there exists a fundamental right to compete through imitation of a competitor’s product, a right that can only be temporarily restricted by patent or copyright laws. Both patents and copyrights have finite durations. Trademarks (including trade dress), on the other hand, can endure indefinitely as long as the mark continues to be utilized in commerce.[6]Top of Form


Trade Dress, though a potent asset for businesses aiming to set their products and services apart, presents challenges in terms of legal protection. The nuances inherent in trade dress make its defense and enforcement a multifaceted undertaking. Here are some of the primary hurdles encountered:

  1. Establishing Distinctiveness: A fundamental requirement for trade dress protection is its distinctiveness. It must either possess inherent distinctiveness or have acquired secondary meaning over time. Demonstrating this distinctiveness can be arduous. For instance, while a distinctive bottle shape might be inherently seen as unique, a specific color scheme on packaging might necessitate evidence showing consumer association with a particular brand. Gathering such evidence, particularly in markets with diverse consumer bases, can present a formidable task.
  2. Duration of Protection: In contrast to patents, which have a defined duration, trade dress can be safeguarded indefinitely as long as it retains its distinctiveness. However, this indefinite duration poses challenges. Over time, what was once distinct might become commonplace or generic within the industry. Businesses must continuously monitor and potentially adapt their trade dress to ensure it maintains its distinct character. Additionally, they must be alert to potential infringers who might argue that a trade dress has become generic and therefore undeserving of protection.
  3. Enforcement Complexities in Global Markets: Trade dress protection becomes notably intricate when dealing with international markets. Various countries have diverse standards and interpretations of what constitutes trade dress, resulting in potential disparities in protection. For businesses operating globally, this entails navigating a mosaic of legal frameworks. Furthermore, enforcing trade dress rights across borders can be both time-consuming and costly. Challenges arise in proving infringement in foreign jurisdictions, understanding local consumer perceptions, and addressing potential cultural disparities in product design and packaging.To summarize

To summarize, while trade dress provides businesses with a tool to safeguard their distinctive identity in the market, the process of attaining and upholding this protection is riddled with difficulties. Successfully managing these challenges demands a blend of legal expertise, comprehension of market dynamics, and strategic planning.[7]


In the ever-changing landscape of commerce, trade dress protection stands as a guardian of creativity and innovation. It encourages companies to invest in distinctive designs that not only set their products apart but also create lasting connections with consumers.

As we move forward, the conversation around trade dress protection and product design will continue to evolve. It is a conversation that reflects the intersection of law and aesthetics, of business strategy and consumer preferences.

In the end, trade dress protection is not just about legalities—it’s about preserving the artistry of product design. It’s about recognizing the power of a well-crafted silhouette or a carefully chosen color palette to captivate hearts and minds. And in this dance between creativity and protection, the products we love and the brands we trust continue to flourish.

In conclusion, trade dress protection plays a pivotal role in the world of product design. It preserves brand identity, sets products apart in the marketplace, fosters innovation, builds consumer trust, and protects against imitations. As companies continue to innovate and consumers demand both functionality and aesthetics, trade dress protection will remain a cornerstone of the design landscape, ensuring that the products we love and cherish continue to reflect the creativity and ingenuity of their creators.


  1. Anthony E. Dowell, Trade Dress Protection of Product Designs: Stifling the Progress of Science and the Useful Arts for an Unlimited Time, 70 Notre Dame L. Rev. 137 (1994) https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1936&context=ndlr
  2. Arijit Mishra, Trade Dress Protection in India and the US, BLOG I PLEADERS, (March 16, 2024 at 7:23 P.M.), https://blog.ipleaders.in/trade-dr-protection ess /
  3. COMPANY 360, https://company360.in/blog/trade-dress-in-trademarks-an-in-depth-analysis/#:~:text=Challenges%20in%20Trade%20Dress%20Protection&text=1.,this%20distinctiveness%20can%20be%20challenging (last visited March 14, 2024)
  4. Excelon IP, https://excelonip.com/protection-of-trade-dress-under-intellectual-property/, (last visited March 17, 2024)
  5. FASTER CAPITAL, https://fastercapital.com/content/Trade-Dress-Protection–Safeguarding-Your-Product-s-Appearance.html, (last visited March 15, 2024).
  6. Loren Lunsford, Esq., Trade Dress in Product Design, MARTENSEN WRIGHT PC (March 15, 2024 at 8:30 P.M.) https://martensenwright.com/en/trade-dress-product-design/#:~:text=Trade%20dress%20generally%20refers%20to,shape%20of%20the%20product%20itself.

[1] Anthony E. Dowell, Trade Dress Protection of Product Designs: Stifling the Progress of Science and the Useful Arts for an Unlimited Time, 70 Notre Dame L. Rev. 137 (1994) https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1936&context=ndlr

[2] Excelon IP, https://excelonip.com/protection-of-trade-dress-under-intellectual-property/, (last visited March 17, 2024)

[3] Id.

[4] Arijit Mishra, Trade Dress Protection in India and the US, BLOG I PLEADERS, (March 16, 2024 at 7:23 P.M.), https://blog.ipleaders.in/trade-dr-protection ess /

[5] FASTER CAPITAL, https://fastercapital.com/content/Trade-Dress-Protection–Safeguarding-Your-Product-s-Appearance.html, (last visited March 15, 2024).

[6]Loren Lunsford, Esq., Trade Dress in Product Design, MARTENSEN WRIGHT PC (March 15,2024 at 8:30 P.M.) https://martensenwright.com/en/trade-dress-product-design/#:~:text=Trade%20dress%20generally%20refers%20to,shape%20of%20the%20product%20itself.

[7] COMPANY 360, https://company360.in/blog/trade-dress-in-trademarks-an-in-depth-analysis/#:~:text=Challenges%20in%20Trade%20Dress%20Protection&text=1.,this%20distinctiveness%20can%20be%20challenging (last visited March 14, 2024)

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