Trade dress refers to a distinctive, non-functional characteristic of a product or its packaging that uniquely identifies the product in the marketplace. These characteristics may include the three-dimensional shape, graphic design, color, or smell of the product and its packaging. Examples of products protected by trade dress law include:

• The pink color of Owens Corning fiber glass insulation
• The shape of a Coca Cola bottle
• The shape of the facade of White Castle restaurants
• The front grill of a Rolls Royce automobile
• The shape of the head of a Big Bertha golf club
  

Trade dress can be registered with the U.S. Patent and Trademark Office. The standard for infringement is the "likelihood of confusion" between products as gauged by the "ordinary buyer". Trade dress infringement exists if the ordinary buyer believes both products originate from the same source based upon the trade dress.

Courts may weigh the following factors in determining the likelihood of confusion:

• The distinctiveness of the trade dress
• Similarity of the products
• Evidence of actual confusion
• Degree of care exercised by buyers

Trade dress registration complements patent and trademark protection, truly allowing a company to protect every aspect of a product's design. Trade dress law is a continually evolving field that should only be handled by an experienced intellectual property attorney.

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