TRICK-OR-TREAT-OR-TRADE DRESS: HALLOWEEN'S TASTIEST REGISTERED DESIGNS
It is Halloween night, trick-or-treating is over, and the family reunites in the living room to pour out their bags and inspect their winnings. The table and floor are covered in everyone's favorite candies, chocolates, and lollipops. Everyone quickly eyes the stash noticing their favorites with just a glance. You can feel the excitement and impending sugar rush in the air.
You might not realize in the moment, but as you were salivating over the large piles of candy you were also identifying your top treats based on their trademarks - you may have quickly recognized the candy based on the product name displayed on the wrapper or you may have recognized the candy based off of its shape or even the specific wrapper or packaging. Most are aware that the names of candies and their associated slogans and logos are eligible for federal trademark protection in the United States. But trademark protection doesn't end there. Contemporary trademark law also offers protection to trade dress, which may consist of a product's packaging or product's design (also known as "product configuration").
"Trade dress" is a legal term used to describe the overall visual appearance of a product or its packaging which is used to identify the product's source. Trade dress may include features such as size, shape, color or color combinations, texture, graphics, and other characteristics. A good example is the iconic CocaCola bottle design:
Originally, trade dress referred to the packaging or 'dressing' of a product, but it has been expanded to include the design of the product as well. As the development of trade dress to include product design led to a growing number of infringement claims, a number of courts began to express concern as to whether a product's design could really function as a "trademark" in the minds of consumers. Leaving the Coca-Cola bottle aside, these courts were not convinced that consumers would readily infer a product's design could serve as a source identifier. For this reason the courts decided that to obtain trade dress protection for a product's design, a claimant would have to establish the design had "acquired distinctiveness." Acquired distinctiveness implies that over time consumers may come to identify what might have seemed to be a mere characteristic of the product as a designation of the source of that product.1
Candy and confectionary companies have taken advantage of this expansion in trademark law and have registered some of our favorite candies' shapes and packaging to ensure that no other competitor can produce a product of similar shape or in similar packaging. Registering their trade dress protects the unique visual appearance of their product or packaging, prevents copying, and ultimately helps build brand identity and goodwill. Take a look at some of the trade dress registrations for Halloween's biggest candies:
Footnote
1. Unlike product design, product packaging is capable of being inherently distinctive, meaning the packaging automatically tells a customer that it is referring to a specific brand or source.
To view the full article click here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
