What is Trade Dress and How Do I Protect It? 

Following up on my What’s the Difference Between a Trademark, Copyright, and Patent? blog post, I’ve been meaning to write about trade dress for a while. I even flagged it in my What Can’t Be Trademarked post as something that deserves more detailed discussion. So here it is.

Trade dress is a form of trademark protection that covers the overall visual appearance of a product or its packaging, the “look and feel” that consumers come to associate with a particular source of goods. It can include shape, color combinations, texture, graphics, and even the décor of a retail space or restaurant. If it’s something consumers use to identify where a product comes from, it may qualify as trade dress.

What is Trade Dress?

Trade dress is broader than most people expect. Courts and the USPTO have recognized trade dress in product packaging (the shape of a bottle, the color scheme of a jar, the layout of a label), product design (the silhouette of a shoe sole, the contour of a chair), and the overall look and feel of a commercial space. The contour of a Coca-Cola bottle, the red sole of a Christian Louboutin shoe, and the interior layout of a Taco Cabana restaurant are all famous examples.

In the cigar industry, an area I’ve worked in a great deal, trade dress has been asserted over something as unusual as the way a cigar is wrapped in an unfinished tobacco leaf. In Robinson v. Santa Cruz Tobacco, a Florida cigar retailer obtained a federal trade dress registration covering the specific design of a whole tobacco leaf wrapping: the way the ends of the leaf twisted forward to meet exactly in the middle, secured by a cigar ring with a horseshoe design and a zipper-like border. That case illustrates both how creative trade dress claims can get and how important it is to describe and register your trade dress correctly from the start. More on that below.

The Three Requirements of Trade Dress

To establish trade dress infringement, a business has to prove three things: (1) that the trade dress is distinctive; (2) that it is not functional; and (3) that the defendant’s trade dress is confusingly similar. Any one of these can be a problem, but in my experience, functionality is where most trade dress claims live or die.

Distinctiveness is a Trade Dress Identifier

Trade dress has to function as a source identifier. Consumers who encounter it should understand, even without reading a label, that the product comes from a particular source. Some trade dress is considered inherently distinctive, meaning it is so unique in its market that consumers will naturally treat it as a source identifier from the start. Other trade dress, particularly product design, has to acquire that distinctiveness over time through extensive and exclusive use. The Supreme Court has held that product design trade dress is never inherently distinctive and always requires proof of secondary meaning. See Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 213-216 (2000). That’s a real hurdle, and it’s one of the reasons businesses should be building consumer recognition around their product’s appearance early rather than assuming the law will protect it later.

Functionality: Where Most Trade Dress Claims Break Down

Functional features cannot be protected as trade dress. The logic behind this rule is straightforward. Trademark law is designed to protect source identifiers, not to hand anyone a permanent monopoly over useful product features. If a product’s functional features need protection, patent law is the right vehicle. A patent has a fixed term; once it expires, the feature enters the public domain, and competitors are free to use it. Letting trade dress substitute for an expired patent would undermine that system, which is why courts take functionality seriously.

A product feature is functional if it is essential to the use or purpose of the article, or if it affects the cost or quality of the article. A March 2026 federal court decision involving the Sol de Janeiro Brazilian Bum Bum Cream illustrates how this plays out. See Apollo Healthcare Corp. v. Sol de Janeiro USA Inc. Defendants. Sol de Janeiro USA Inc., 2026 U.S. Dist. LEXIS 55695, at *3 (S.D.N.Y. Mar. 17, 2026). Sol de Janeiro claimed trade dress rights in its sunshine-yellow jar with the gently rounded bottom and the large overhanging lid. The court went through each element. The rounded bottom? Functional, because it makes it easier for consumers to scoop thick cream with their fingers and provides structural strength during shipping. The oversized lid? Functional, because it gives cream-covered hands a large gripping surface to seal the jar and preserve what’s left inside. The yellow color? Also functional, because Sol de Janeiro used color to signal fragrance and product benefit across its whole product line, which the court found improved the operation of the goods. Even the text arrangement on the lid was found functional for legibility. Because every element of the jar improved the quality of the container, the trade dress claim was dismissed.

The court also rejected Sol de Janeiro’s argument that the jar had been designed with no regard for functionality, “a hundred percent aesthetics,” as their own witness put it. That kind of testimony doesn’t carry the day. A feature doesn’t become non-functional because the designer wasn’t thinking about functionality when they created it. What matters is whether the feature is, in fact, useful, not what the designer intended.

One more thing worth noting from that case: the USPTO had already refused registration for similar jars in related applications on functionality grounds, and the court gave those refusals substantial weight. If the USPTO has told you that a design element is functional in one context, that finding can come back to haunt you in litigation involving a related product.

Getting the Description Right in Your Trademark

Back to the Robinson cigar case for a moment, because it teaches a different but equally important lesson. Robinson initially tried to register a trade dress that was essentially just “a tobacco leaf wrapped around a cigar.” The USPTO rejected that description multiple times, requiring him to keep adding specificity until the registration covered six distinct elements: the particular way the leaf folded, the visible stem, the specific cigar ring design, and so on. When a competitor came along using a tobacco leaf wrapper that shared maybe one or two of those six features, the court declined to find infringement. Trade dress protection extends to what was actually registered, not to the broad concept the claimant had in mind. How you describe your trade dress matters as much as whether you register at all.

How to Protect Your Trade Dress

The starting point is figuring out what you actually have. Not every distinctive-looking product qualifies, and not every element of its appearance is protectable. A careful analysis of which features are functional, and which the consuming public has genuinely come to associate with your brand as a source identifier, is essential before investing in a registration strategy.

From there, federal registration is the goal. Unregistered trade dress can be protected under the Lanham Act, but the burden falls on the claimant to prove non-functionality. A federal registration shifts that presumption in your favor and unlocks the full range of remedies available under trademark law, including statutory damages and attorneys’ fees in appropriate cases. And as with any trademark, the earlier you register, the earlier your nationwide priority is established.

Trade dress is a powerful tool for extending brand protection beyond a name or logo. But it is also one of the more technical areas of trademark law, and the line between protectable expression and unprotectable function is not always obvious. Getting the analysis right at the front end is a lot cheaper than litigating it later.

To develop a trade dress protection strategy for your business, contact Jimerson Birr.