The best examples come from fast food and hotels. You can walk into nearly any chain establishment and look around and know what brand owns the building. Each particular franchise will look practically identical to every other franchise of the chain. From the colors of the walls to the layout of the building, there is a consistency easily identifiable to the consumer. This can be trade dress.
Trade dress and trademarks are very similar concepts. Both are types of intellectual property created by statute for the purpose of making the identification of a location or product easier. While trademarks require a symbol, image, word, or phrase, trade dress is a much broader concept. Courts have found everything from waitress uniform stitching to magazine covers, to the interior design of an establishment to be trade dress.
The main difference between trade dress and trade marks is the same thing which makes trade secrets unique. Trade dress requires no formal registration. Instead the test to determine if there is a protectable trade dress is if the potential trade dress is “distinctive and recognizable.”
This means trade dress cannot be some general packaging. A square box will most likely not be distinctive nor will it speak to the identity of the source of the product. However, a highly intricate grille on the front of a car which is the focus of the advertisements could qualify. As indicated, perhaps the best examples of trade dress are from chain establishments. There are many different factors including the furniture, the lighting, the layout, and design features are all included.
Trade dress may be overlooked as an area of law but it is an important component of the commercial protections in the intellectual property arena. Furthermore, it should not be overlooked by a start up or existing business.