Rebel cartoon stick figure with green hair pointing at a chalkboard with “Trade Dress” written in large chalk letters — representing a blog post about trade dress and non-traditional trademarks.

Non-traditional trademarks are unconventional and unique forms of trademarks, including trade dress, color marks, shape marks, configuration marks, position marks, sound marks, scent marks, motion marks, hologram marks, texture marks, and taste marks. Non-traditional trademarks are much less common than traditional trademarks but provide a creative and innovative way for businesses to establish and protect their brand identities.

“Trade dress” [1] refers to the distinctive visual appearance of a product, its packaging, or a service. Trade dress encompasses a wide array of visual elements that create the overall impression of a product, its packaging, or a service, signifying the source of the product or service to consumers and helping to protect the brand identity and market presence. Trade dress can include visual non-traditional marks like color marks, shape marks, configuration marks, position marks, and texture marks.

In order for trade dress to be registered as a trademark, the trade dress must be capable of identifying the source of the product or service, distinctive, and not protect visual features that are functional or essential to the use of the product or service. Trade dress registrations are often difficult to receive and are reserved for widely known visual appearances: you see the visual appearance of a product, its packaging, or a service, and you know the company offering it. Stay tuned in the coming weeks as we discuss each of the types of visual marks that make up trade dress in more detail!

Some of the earliest still-active trade dress registrations across mark types include the Owens Corning Pink color mark, first used in 1956 and first registered in 1987 [2], the Coca-Cola Bottle shape mark, first used in 1912 and first registered in 1960 [3], the Bicycle Playing Card configuration mark, first used and first registered in 1893 [4], the Keystone Red Brand Fencing position mark, first used in 1915 and first registered in 1919 [5], and the Gerber Gator Knife texture mark, first used in 1991 and first registered in 2007 [6].

Want to learn more about trademarks? Check out our posts on What's a Trademark?, US TM Registration Process, and “Intellectual” Property? Sounds Made Up.