Trade Dress
The total visual image and overall appearance of a product or its packaging that identifies the source of goods to consumers. Protectable under federal and Texas law where it is non-functional and either inherently distinctive or has acquired secondary meaning. Distinct from the underlying utility of the product; protects appearance, not function.
Trade dress is the total visual image and overall appearance of a product or its packaging that identifies the source of goods to consumers. Trade dress can include shape, color combinations, textures, graphics, and the overall design of packaging or product configuration. Protectable trade dress allows businesses to protect distinctive product appearances and brand presentations beyond what trademark protection of names and logos provides.
Two categories: packaging vs. product configuration
The Supreme Court's Wal-Mart decision distinguished two trade-dress categories: packaging trade dress (the dress of the package or container) and product-configuration trade dress (the design of the product itself). Packaging trade dress can be inherently distinctive, protectable without proof of secondary meaning. Product-configuration trade dress is never inherently distinctive and always requires proof of acquired secondary meaning before protection attaches.
Functionality bar
Functional features cannot be protected as trade dress. TrafFix (2001) held that a feature is functional if it is essential to the use or purpose of the product, affects the cost or quality of the product, or if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage. The functionality bar prevents trade-dress law from being used to protect what should be protected (if at all) by patent law. Aesthetic functionality, features that drive consumer demand for non-source reasons, is also barred.
Secondary meaning
Secondary meaning exists where consumers have come to associate the trade dress with a single source. Evidence includes (1) length and exclusivity of use; (2) advertising expenditure; (3) sales volume; (4) consumer surveys; (5) intentional copying by competitors; and (6) media coverage. Consumer survey evidence is often dispositive in litigation.
Two Pesos and the Texas connection
Two Pesos v. Taco Cabana (1992) is a Texas-origin case that established trade-dress protection for restaurant decor under the Lanham Act. The Supreme Court affirmed a Texas jury verdict finding that Taco Cabana's restaurant interior, a combination of color schemes, mural patterns, and seating layout, was inherently distinctive trade dress and infringed by Two Pesos's similar restaurants.
Trade-dress protection becomes valuable at scale, when imitators begin to copy a successful product or service presentation. For Texas businesses developing distinctive product designs, packaging, or service environments, federal registration on the Principal Register provides the strongest protection. Documentation of consumer association, surveys, brand recognition studies, advertising spend, should be developed before litigation arises, not after, when retrospective evidence is harder to gather and more easily challenged.
Practice guide: How to Trademark a Business Name