A number of readers came here today after putting TRADE DRESS as a search term into Google. I suspect it was because Instapundit ran a piece today entitled “Trade Dress Matters” in which he says that he was intending to purchase the Norelco Rechargeable Shaver (pictured) and instead, because he was in a hurry, purchased what he described as a lookalike knock-off.
Trade Dress refers to the overall appearance of a product or a feature such as “size, shape, color or color combinations, texture, graphics or even certain sales techniques.” John H. Harland Co. v. Clarke Checks, Inc., 771 F.2d 966, 980 (11th Cir. 1983), cited with approval in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753 (1992). Functional aspects of trade dress are not protectable.
I zipped the photo over to my colleague, trade dress raconteur Glenn Mitchell, co-author of INTA’s books on trade dress who writes back: