Sometimes products speak for themselves—just by look and feel alone, consumers know what company puts out red-soled heels (Louboutin), a robin's egg blue box (Tiffany & Co.) and H-shaped belt buckles (Hermès). This is not lost on brand owners: countless brands have seized on the communicative power of design as a tool for consumer recognition and have taken steps to cultivate valuable trade dress rights. A trade dress is a type of trademark that refers to the image and overall appearance of a product. It can include customized packaging, product shape and color and even the look and feel of a retail store or webpage.

Trade dress is a critical component of branding because it allows companies to protect their valuable designs as indicators of source. But trade dress can be incredibly difficult to achieve, particularly for product designs which must be both non-functional and have acquired distinctiveness (i.e., secondary meaning). A string of recent cases highlights some of the challenges in establishing trade dress rights and illustrates that to establish and enforce a trade dress successfully brands must understand the common roadblocks to protection and plan ahead.