Distinctiveness

June 24, 2009
Intellectual Property News and Interesting Facts

Trade dress may be either “inherently distinctive” or acquire distinctiveness through “secondary meaning”. Inherent distinctiveness means that the trade dress is so arbitrary or fanciful in relation to the product or entity it represents, that this arbitrariness itself serves to distinguish the product from others. Distinctiveness through secondary meaning means that although a trade dress is not distinctive on its face, the use of the trade dress in the market (the “good will” of the trade dress) has created an association between that trade dress and a source in the mind of the consumer.

Although the law is evolving, as it stands now, product packaging (including packaging in very general terms, such as a building’s décor) may be inherently distinctive. However, product design, that is the design or shape of the product itself, may not be inherently distinctive, and must acquire secondary meaning to be protected.