Brand creation and protection potentially involve several legal concepts – trademark and service mark protection, copyright and, potentially, patent rights. One frequently overlooked aspect of brand creation and protection is trade dress, which should play a considerable role whenever you are creating a brand. Simply put, consistent, appealing trade dress helps develop consumer goodwill and helps consumers immediately identify your brand. It also helps consumers readily identify your brand and products with their source as opposed to that of a competitor.
What is trade dress? Trade dress is the overall the overall look and feel of a product that indicates its source. Trade dress can also include the design, shape or configuration of a product. Trade dress can additionally include the décor or environment in which the products or services are offered for sale to the public.
Let’s take an example – the Apple Store. The Apple Store has a distinctive minimalist appearance. It has a Genius Bar located in the back of the store. It also has a clear glass storefront with a paneled façade and oblong tables with stools. It also has flush mounted screens on the back wall. All of these design elements are consistent throughout each Apple Store. As a result, the Apple Stores clearly and consistently reflect the company’s brand. These design features also reflect the brand’s intrinsic culture of being cutting edge, cool and stylish. In sum, these design elements reflect Apple Inc.’s trade dress for the Apple Stores. The United States Patent and Trademark Office (the “USPTO”) agreed and on January 22, 2013 granted Apple Inc. a trademark registration for the trade dress of its Apple Stores.
The takeaway from trade dress is that looks do matter. In fact, they matter a tremendous amount. Creating consistent, attractive packaging is essential to any successful brand. Attractive, consistent packaging along product lines creates consumer interest, conveys a favorable impression of quality and instills purchasing confidence in the public. The same holds true for the appearance of a brick and mortar storefront or an online presence. Be consistent. Use the same colors in your storefront or on your online presence as your product packaging or service menus. These are key brand building elements. Once you have incorporated effective trade dress into your brand presence, you can then seek to protect it through registration with the USPTO.