Intellectual Property
Sep. 30, 2026
Your patent file may defeat your trade dress
Product features that improve performance, reduce costs or give competitors a needed advantage cannot receive trade dress protection, so companies should examine patent filings, marketing claims and design choices before asserting trademark rights.
Chang Kyoung (CK) Choi
Dr. Choi is an Associate Professor
Michigan Technological University
Mechanical and Aerospace Engineering
Roberto Escobar
Email: bobby@elaw.business
Roberto "Bobby" Escobar is general counsel, and an environmental and labor and immigration advisor.
A company spends years making a product visually distinctive. Consumers come to recognize its shape, color, configuration or packaging. A competitor then adopts a similar look, and management's reaction is immediate: "That is our trade dress."
Perhaps. But before the cease-and-desist letter goes out, ask a more basic question: Does the feature identify who made the product, or does it make the product work--or compete--better?
That question lies at the heart o...
For only $95 a month (the price of 2 article purchases)
Receive unlimited article access and full access to our archives,
Daily Appellate Report, award winning columns, and our
Verdicts and Settlements.
Or
$895, but save $100 when you subscribe today… Just $795 for the first year!
Or access this article for $45
(Purchase provides 7-day access to this article. Printing, posting or downloading is not allowed.)
Already a subscriber?
Sign In