Trade dress law isn’t something brand new. It’s been around for over 100 years.

Not many people really understand just what the term trade dress law actually means, which is a bit unusual, since the term has been around for at least a hundred years, give or take. In fact, it was the courts of days gone by that set the principle of trade dress law in stone by stating the maker of a product intended to be consumed by the public or used by them “must see to it that the product is not dressed in the clothes of another.”

Put another way, this simply means that the idea here was to stop commercial piracy where manufacturers/retailers would fob off their products as being someone else’s. Confused yet? In even simpler terms this just means that the courts, even a hundred years ago, wanted to stop people from ripping off others by offering goods that looked like something they were not. Today that would be called infringement.

So by now you’re wondering what the heck trade dress really means, since no one seems to have a good grasp of the concept. History says that at one time, trade dress meant the manner in which a product was “dressed up” for marketing. It means far more than that now.

Sometimes the more things change, the more they remain the same. This concept is no different. Even way back when, commercial piracy involved things like mimicking brand names or labels to fool consumers.  There were even instances of manufacturers imitating another’s packaging so closely, it was hard to tell which product was the genuine original. In response to that sneaky backdoor practice, the courts widened the definition of trade dress law to include product packaging – in particular, specific shapes.

Over time, the laws dealing with trade dress issues were rewritten, added to, expanded and changed. Interestingly enough, the specific term trade dress itself doesn’t actually appear in the Trademark Law revision of 1988. Instead, protection is offered for any word, term, name, symbol or device, or any combination.

Time passed once again and as the world turns, trade dress decisions handed down in the courts in the 1990s started to show a more aggressive stance by plaintiffs who wanted the expanded trade dress protection applied to them. Since the law is rarely static, this began to change as other courts started to restrict protection for trade dress – specifically product configuration. Consider this whole area to be a moving target, subject to change depending on the nature of the case at hand.

What makes trade dress protectable and how does a plaintiff prove they have been infringed upon? In a nutshell, the plaintiff has to show their trade dress is unique (distinctive), inherently or through the acquisition of secondary meaning, not functional. They also need to show that the defendant’s rip-off or knock-off is bound to cause confusion to the public because they won’t know the original source.

As you can tell, this is a fairly complex area of the law, and proving a trade dress case can be touch and go. However, having said that, it can certainly be done, and done with success.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.