“Trade Dress” vs Design Patent

The year is 1915 and you just designed the new Coca-Cola bottle. Should you seek design patent protection or go for trademark protection? Trade dress refers to the unique packaging or appearance of a product that distinguishes it from others in the market. Not only product packaging, but also store designs, website layouts, and other forms of visual branding can be protected. To be considered protectable trade dress, a product’s packaging and appearance must be distinctive and non-functional. In other words, trade dress protection is not available for features of product that serve a utilitarian function. Trade dress protection lasts as long as the product is used in commerce. In other words, there’s theoretically no expiration date. In contrast, a design patent protects the new ornamental design of a product and provides a 15 year terms of exclusivity. Design patents do not depend on use in commerce. As trade dress provides protection that runs considerably longer than a design patent, it is an avenue worth investigating. If you have more questions, we suggest consulting with an experienced intellectual property attorney.