I believe that everyone should have something that makes them instantly recognizable—a distinguishable, unique identifier. And if you’re an entrepreneur, business owner, or creative in any way, this goes without saying: you want people to view you as the source of your brand.
But sometimes great minds think alike… and suddenly your brand’s look and feel starts looking a little too close to someone else’s. At that point, the question becomes: who picked out the outfit first?
In the trademark world, that situation is often called a trade dress issue.
What does “trade dress” even mean??
Trade dress is a form of trademark protection that covers the overall visual impression of a brand… how something looks as a whole, not just a logo or brand name. Depending on the business, trade dress can include:
- colors and color placement
- shapes and product configuration
- label layout and packaging design
- textures and materials
- overall presentation that creates a recognizable “look and feel”
The purpose is to prevent consumer confusion so customers don’t buy from a competitor thinking they’re buying from you or from a company that you’re affiliated with.
When Similarity Actually Becomes a Legal Problem
Not every “similar vibe” is infringement. Trade dress becomes a legal issue when the similarity is so strong that it’s likely to confuse consumers about origin, sponsorship, or approval.
A recent example in the beauty world is Benefit Cosmetics v. e.l.f. Cosmetics, where Benefit claimed e.l.f.’s “Lash ‘N Roll” mascara infringed its trade dress. The court ultimately ruled for e.l.f., emphasizing that even with design cues, a plaintiff still has to prove confusion is likely, not just possible.
Trade Dress Claims Typically Stand on Three Pillars:
1. Distinctiveness
To enforce trade dress, you must show consumers recognize that overall look as pointing to one source (YOUR BRAND).
For product design trade dress in particular, courts often focus heavily on secondary meaning. Secondary meaning occurs when consumers recognize a particular design to equal your brand.
Very important:
You must be able to identify your trade dress clearly. In Cardinal Motors v. H&H Sports Protection, the Second Circuit addressed the need to articulate the claimed trade dress with enough precision so the court can evaluate it. The Court further clarified that articulation is its own requirement separate from proving distinctiveness.
Examples of secondary meaning evidence:
- length and consistency of use
- advertising emphasizing the look as signature
- strong sales tied to the look
- media recognition
- survey evidence
- misdirected inquiries/consumer mix-ups
2. Likelihood of Confusion
This is where you show that an ordinary consumer is likely to be confused as to who is behind the product/service because the overall trade dress is too similar.
3. Non-functionality
Even if your look is distinctive, trade dress law won’t protect features that are functional. This means that the claimed features are needed because they affect how the product works, or affect the cost or quality in a way that gives a non-reputation-related advantage.
Registration helps, but it’s not required
You can have trade dress rights without federal registration (trade dress can be protected under the Lanham Act), but registration can make enforcement smoother and can strengthen your position.
However, registration isn’t the total package. You’ll want evidence that your trade dress truly functions as a brand identifier (distinctiveness) and that the elements you’re claiming aren’t functional.
Here’s a quick “signature look” checklist:
If you think someone’s brand is wearing an outfit too close to yours, ask yourself:
- Can I describe my trade dress as a specific combination of elements, not a general vibe?
- Have customers learned that my look points to my brand (secondary meaning)?
- Is confusion likely (complaints, misdirected messages, retailer mix-ups, surveys, etc.)?
- Are the key features non-functional (not essential to use/purpose or cost/quality advantages)?
- If my look is widely recognized, could this mix-up dilute my brand?
If your brand has a signature look, protect it like it matters because it absolutely does! If someone’s “twinning” a little too hard and customers can’t tell the difference, it may be time to get clarity on your trade dress rights.
Feel free to call us if you want to talk about it!