Securing Brand Identity Through IP – Trademarks, Trade Dress, and Design Patents

Companies across the world spend millions of dollars per year on branding. But why? To answer in simple terms, branding helps increase visibility and brand recognition that ultimately drives sales.

This branding can mean various things – product design/packaging, logo, name, brand colors, specific store design, etc. Those ‘Golden Arches’ of McDonald’s can be spotted from a mile away; wooden decor, soft music, and the scent of fresh coffee are instantly recognizable with Starbucks (they sell food too, but you don’t smell it – that’s by design), etc.

Protecting a product/brand design requires strategic planning. Two forms of IP protection are the most common – design patents and trade dress.

Design protection and trade dress occupy distinct roles within IP law, aiming to foster innovation and prevent consumer confusion, respectively. While design protection safeguards the ornamental aspects of a product, allowing companies to recoup design investments, trade dress, under Trademark Law, focuses on protecting the marketing efforts and ensuring products are associated with their correct source.

This dual approach not only secures investment in design and marketing but also enhances consumer trust in product authenticity.

Differences between Trademark, Trade Dress, and Design Patent.


  1. A trademark is a recognizable sign, design, or expression that identifies products or services of a particular source from those of others. It can be a word, phrase, logo, symbol, or a combination thereof.
  2. Trademarks protect brand names and logos associated with products or services.
  3. They help consumers distinguish between different products or services in the marketplace.
  4. Trademark protection can be obtained through registration with governmental authorities, such as the United States Patent and Trademark Office (USPTO) in the U.S., although common law protection exists even without formal registration.
Trade Dress
  1. Trade dress refers to the overall appearance and image of a product or its packaging that distinguishes it from others in the marketplace.
  2. It includes elements such as color schemes, designs, packaging, décor, or even the layout or design of a store or restaurant.
  3. Trade dress protection extends beyond logos and brand names to cover a product or service’s overall visual appearance or “look and feel” of a product or service.
  4. Like trademarks, trade dress protection aims to prevent consumer confusion and protect the goodwill associated with a particular product or service.
  5. Trade dress can also be protected through registration with relevant authorities, though common law protection also applies.
Design Patent
  1. A design patent protects the ornamental or aesthetic aspects of a product’s design. It covers the unique visual characteristics of a product, such as its shape, surface ornamentation, or configuration, rather than its functional aspects.
  2. Design patents are granted by the government and provide exclusive rights to the inventor to prevent others from making, using, or selling a product with a design that is substantially similar to the patented design.
  3. Design patents typically have a term of 15 years from the date of issuance (in the United States), after which the design enters the public domain.
  4. Unlike trade dress, design patents require a formal application process and examination by the patent office to determine whether the design meets the criteria for patentability, including novelty and non-obviousness.

In the realm of Intellectual Property (IP) law; trademarks, trade dress, and design patents each serve to protect different aspects of a product’s identity and design.

Together, these protections are vital for maintaining a company’s distinct identity in the marketplace.

Here’s a classic example of the Coca-Cola Company –

Deciding When to Seek Design Protection

For design registration, the design must be part of a manufactured item, ornamental, new, and distinct from prior designs. It should not be purely functional, as designs necessary for functionality do not qualify for protection. Public disclosure before filing can disqualify the design. To safeguard the design, it’s advisable to file for protection early, ideally before public disclosure or the start of manufacturing.

Opting for Trade Dress Protection

To qualify for trade dress protection, a design must be non-functional and recognized as indicative of a particular source through ‘secondary meaning’. Packaging designs might inherently gain trade dress rights due to distinctiveness. Trade dress is reserved for designs that do not serve a functional purpose.

Trade dress protection is not limited to a 15-year term, like a design patent, and can continue for as long as the trade dress is used commercially in the marketplace.

Challenges and Nuances of Trade Dress Protection

Protecting product designs as trade dress isn’t always viable due to the requirement for “acquired distinctiveness,” where a design must distinctly signify its brand to consumers, like the Coca-Cola bottle. Demonstrating this distinctiveness often involves complex and costly methods, such as consumer surveys, making trade dress less common than design patents for product designs.

Furthermore, trade dress cannot cover functional aspects of a product, adhering to stricter functionality rules than design patents, thus disqualifying designs that integrate function with brand identity.

Principal Conclusions

Trade dress rights are perpetual, linked to commercial use as source identifiers, while design protection is time-limited. Trade dress requires “acquired distinctiveness” for protection, a higher bar than the design’s “substantial similarity” test. For new, uncommercialized products, only design protection is viable.

Conversely, trade dress suits long-term brand features across product lines. Employing both protections can be strategic against copycats, securing immediate design protection while building long-term trade dress rights. This dual approach maximizes visual appearance protection, enhancing a product’s market success and ownership value.

At Legal Advantage, we adopt a strategic, consultative approach when working with inventors, recognizing their vital role in advancing global progress. Building a brand is challenging, and we understand the importance of protecting it. Trust us to safeguard your brand effectively. Book your complimentary consultation today.

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