As the year approaches into (yet another) scorching hot Texas summer, you may notice more consumers carrying the latest trendy and sleek, 40-ounce Stanley Tumbler. This hot new trend joins the ranks of popular drinkware from recent years, like Hydro Flasks, Yeti tumblers, and S’well bottles. They all accomplish the same functionality—to keep drinks warm or chilled for long periods of time—but they all differ in design and overall packaging. So what is the craze all about with Stanley drinkware? It all stems from its “trade dress.”
What is Trade Dress?
Trade dress is an extension of trademark protection but focuses more on the overall product aesthetic rather than just a brand name or logo. It is the commercial look and feel of a product that identifies and distinguishes the source of the product or service. Brands like Stanley may use trade dress to distinguish their product from others, create a unique identity in the marketplace, and protect their products from imitators.
The elements of trade dress typically include the product’s design, packaging, shape, color, texture, and graphics. Together they create a distinctive look and feel that makes the product recognizable and distinctive in the marketplace.
Here, for example, the Stanley Tumbler has a distinctive look and is easily recognizable due to its double-insulated, vacuum-sealed stainless-steel tumbler, large comfort-grip handle, and narrow base (making it compatible for car cup holders). It also contains a tight screw-top lid that holds a reusable, plastic straw. The tumbler has many different color variations but all of them have a soft matte finish with the Stanley logo centered at the top of the tumbler.
Is Trade Dress Protectable?
Yes, like trademarks, trade dress can be protected through common law, state law, and the Lanham Act. In fact, most trade dress is protected without registration.
That said, companies should consider applying to register their trade dress with the USPTO. A product qualifies for trade dress registration if it is (1) distinctive, (2) non-functional, and (3) will not cause confusion. A trade dress can either be “inherently distinctive” or has acquired secondary meaning (aka “acquired distinctiveness”). Inherent distinctiveness is a measure of how unique and original the trade dress is, while acquired distinctiveness is based on how well the trade dress has been marketed and promoted over time. Even if a product is not inherently distinctive, an applicant can prove acquired distinctiveness by showing the USPTO the trade dress has gained significance among the consuming public. In other words, consumers now associate the trade dress with the applicant as the source of those goods. Finally, trade dress is protectable if it does not cause confusion with another brand’s or product’s trade dress. The USPTO will deny protection if it believes the consumers are likely to be misled about who produced the product being sold.
Trade dress registration provides an extra layer of protection to safeguard companies’ assets, the unique and distinctive features of their product designs in the marketplace, brand awareness, and reputation. It can also help prevent infringement, trade dress dilution, unfair competition, and misappropriation from those copying, selling, or distributing imitating or knock-off products.
If you have trade dress you’d like to protect, contact us to learn how we can help.