In addition to words and symbols, the trademark laws afford protection for a trade dress. A trade dress is the design and appearance of a product together with all the elements making up the overall image that serves to identify the product presented to the consumer. These elements include the appearance of labels, wrappers, and containers used in packaging a product as well as displays and other materials used in presenting a product to the public. Two Pesos v. Taco Cabana, 505 U.S. 763, 112 S. Ct. 2753 (1992). In an action to enforce a trade dress, the plaintiff must specifically identify its character and scope.
A trade dress will not enjoy trademark rights if it is functional. There are two types of functionality. The first is “utilitarian functionality,” which is the test most commonly at issue. A trade dress will be denied protection under the utilitarian functionality test if it: (1) is essential to the use or purpose of the article, or (2) affects the cost or quality of the article. A product feature is considered essential if it is dictated by the functions to be performed by the product. A product feature affects the quality or cost of a product where it permits the product to be manufactured at a lower cost or constitutes an improvement in the operation of the product.
