What is the difference between Trademark and Trade Dress?
Trade dress constitutes a “symbol” or “device” within the meaning of §2 of the Trademark Act. It encompasses the “total image and overall appearance” of a product, not just the packaging: the totality of the elements, including size, shape, color or color combinations, texture, and graphics. Trade dress can be the design of a product (the product shape or configuration), the packaging in which a product is sold, the color of a product or of the packaging in which a product is sold, or even the flavor of a product.
Trade dress is different from a trademark. A trademark protects a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. You would likely place your trademark on a product itself or on its packaging; trade dress is the overall look of the product, not just a name or logo. A trademark also affords protection that trade dress does not, e.g., the ability to prevent importation of confusingly similar goods, constructive notice of ownership, incontestable status, and prima facie evidence of validity and ownership.