Trade Dress: Rising from the Ashes

Abstract

Trade dress represents an often overlooked form of intellectual property. While simply defined as a unique design that identifies the good or service being provided, trade dress has played second fiddle to more identifiable intellectual property assets such as patents, copyrights, and trademarks. Trade dress was essentially dormant for the better part of the 20th century, with renewed interest in it beginning with the 1992 Supreme Court decision in Two Pesos v. Taco Cabana. Its recognition has been further enhanced with some cases since, most notably the Wal-Mart v. Samara Brothers suit, and then the recent Apple v. Samsung litigation. We navigate through these and other landmark cases, explaining how each has helped to shape the current status of trade dress. We conclude by providing some recommendations as to how an entity might ensure that its trade dress is best initially developed, and then subsequently protected.