Many restaurants and retail establishments are identified by their own décor and interior design, with each element contributing to the overarching atmosphere and brand message. While it is common knowledge that a name and logo can be afforded legal protection under trademark laws, companies far too often overlook the importance of achieving protection over the “look and feel” of their establishments. As businesses begin expanding through franchising and chain operations, and continue building and investing in a brand identity, it is critical to understand how “trade dress” protection can serve as a powerful tool to guide and safeguard such undertakings.

Trade dress not only pertains to a product's image, size, shape, color or texture, but also has been expanded to encompass the interior and exterior décor, signage, menu and general “atmosphere” of a restaurant or store. Like a traditional trademark, a company's trade dress is similarly protected by the Lanham Act.

In the 1992 U.S. Supreme Court case of Two Pesos v. Taco Cabana, 505 U.S. 763 (1992), the court upheld a jury verdict on a claim of trademark infringement in favor of Taco Cabana, a Mexican restaurant chain having a “festive eating atmosphere,” with “interior dining and patio areas decorated with artifacts, bright colors, paintings, murals,” as well as an exterior with a “vivid color scheme” using “border paint and neon stripes,” and “bright awnings and umbrellas.” In its opinion, the court expressly recognized that retail trade dress could qualify as a protectable trademark. Specifically, because Taco Cabana's unique atmosphere and appearance was inherently distinctive, it was able to show a likelihood of confusion in its claim against a competing restaurant that ripped off its concept.