Everything that makes up the overall look and feel of its product or service is a company’s trade dress. Because business leaders devote considerable time, money and effort in developing a company’s trade dress, official trademark protections are often available. 

If another company or an individual misappropriates a business’s protected trade dress, an infringement action may be necessary. When weighing whether infringement has occurred, courts typically consider four factors. 

1. Inherent distinctiveness

To qualify for trademark protection, trade dress must be inherently distinctive. If a company’s trade dress is common in the marketplace, it may be virtually impossible to determine if a junior user has illegally misappropriated it. 

2. Similarity of dress

There is a finite number of colors, designs, packages and decorations a company may use to showcase its product or service. Nonetheless, if two firms have exceedingly similar trade dress, infringement may be likely. 

3. Consumer confusion

Good trade dress often helps companies attract new customers and retain existing ones. If an ordinary consumer can easily distinguish between the trade dress of two different firms, there may be no infringement. 

The opposite may also be true. That is, if consumers regularly confuse two companies because of their similar trade dress, infringement may be to blame. Naturally, customer sophistication may play a part in assessing consumer confusion. 

4. The alleged infringer’s intent

Finally, the intent of the alleged infringer is also relevant in an infringement matter. If the infringer intended to copy trade dress or to deprive its owner, a court may intervene to stop the infringement. 

Because climbing into the head of an alleged infringer can be challenging, courts typically do not put any more weight on the last factor than any of the others.