Trade dress includes the three-dimensional design or configuration of the product itself. The three-dimensional packaging or wrapping in which a product is sold also constitutes trade dress.
To be registerable on the Principal Register, the trade dress must be distinctive and not functional.
Product design trade dress is never “inherently distinctive” and registration on the Principal Register requires showing that the trade dress has “acquired distinctiveness.” On the other hand, product packaging is capable of being inherently distinctive and can be registerable on the Principal Register without any special showing of acquired distinctiveness.
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