Copyright and trademarks do not address the look of the product itself. A powerful emerging approach to protect the look of a product over the long term is to establish a trade dress for the product. Trade dress is probably the least understood but most important form of iP protection from a long-term brand benefit. Trade dress is trademark protection for the look of a product or service that associates the product with the manufacturer. It is less specific than a design patent, but similar, broader, and of longer impact. Like a trademark, as long as you use it, you can maintain it. Trade dress associates secondary meaning to the consumer that associates a nonfunctional feature of a product or service to the product or brand in the public’s mind. Color is a typical approach to trade dress. Consider the “purple pill,” Nexium, which has a purple capsule and three gold lines, or the brown of UPs (“What can Brown do for you?”). Associating the color with the particular brand differentiates the product from the competitors. Because the color, itself nonfunctional, is associated with the particular product, a secondary meaning is established, and no other drug for acid reflux can be purple (especially with gold stripes), nor can FedEx, DHL, or other package shippers use brown as their identifier.
For Swiffer, the darker green box and light aqua coloring for the handle and base are differentiators that identify the Swiffer brand over Pledge, Clorox, and all the others. Trade dress is an approach to protect aspects of a product’s brand identity. It takes some time to establish the secondary meaning for trade dress. The company must work to establish that meaning and prove to the court that it intended to create that connection of the package to the product. Companies can show sales success, the amount spent on advertising, consumer surveys, and even consumer testimony as evidence of secondary meaning of the product feature with the product’s identity. Think how much Nexium spends telling us that its pill is purple or UPS to remind us that it is brown.
