Just like a strong trademark, distinctive trade dress product packaging and product configuration is source-designating. Think of familiar consumer products, from snack crackers to alcoholic beverages, and how you locate them in a store. Often you use graphical clues other than their brand names. For example, in the cookies and crackers aisle, you instantly recognize the bright red box with the round blue label as Ritz, even before you read its brand name. In the gin department, that stubby cylinder of dark green glass with the silver cap and red wax seal on the label can only be Tanqueray.
In both trademark and trade dress cases, the plaintiff must prove distinctiveness and likelihood of confusion. Proving infringement in a trade dress case, however, involves additional considerations which can be crucial to success. One key issue which the plaintiff must carefully consider is how to define the trade dress in question.
The anatomy of trade dress
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