Trade dress is the is the commercial look and feel of a product or service that identifies and distinguishes the source of the product or service. As to products, it often includes the product’s elements such as the design, materials, colors, and placement of material used to package a product. As to services, restaurant chains, such as Hooters, that have a distinctive appearance are entitled to protection for trade dress.
Like trademark infringement, trade dress is governed and protected by the Lanham Act. In a trade dress infringement case, the elements considered are: (1) the trade dress is inherently distinctive or has acquired secondary meaning; (2) it is primarily non-functional; and (3) the defendant’s trade dress is confusingly similar.
Distinctiveness is defined as whether the appearance of the product is sufficient to allow consumers to identify the product from the trade dress. For example, the United States Supreme Court has found that a Mexican restaurant chain’s decor was inherently distinctive because it featured a mural, brightly colored pottery, distinctive outdoor umbrellas, neon border stripes, and a novel style of service. Distinctiveness is measured along an increasing scale: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. The Eleventh Circuit applies the Seabrook test to determine distinctiveness, which examines (1) whether the design or shape is a common,