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Trademarking a brand name, product name, logo, or design in the alcohol industry has become commonplace among alcohol producers as a seemingly automatic protective measure when launching a new brand or product. Registering a trademark on the principal register can put competitors on notice of your right to exclusive use of the mark in commerce as well as protect against subsequent infringers looking to usurp the reputation or goodwill of the brand. But what about the forgotten cousin of trademark, trade dress? Why do we rarely see producers running out to obtain trade dress protection for their products?  Trade dress protects the “total image” or “overall appearance” of a product or establishment and may include features such as size, shape, color or color combinations, texture, graphics or even certain sales techniques (John H. Harland Co. v. Clarke Checks, Inc., 771 F.2d 966, 980 (11th Cir. 1983)). Trade Dress protection is afforded when features of a product or a product’s packaging are distinctive and not required for functionality, but rather are used to create an association between the producer and the product. Distinctiveness can be inherent, or it can be acquired through secondary meaning when an aspect of a product that is not necessarily distinctive on its own eventually becomes distinctive through consumer association with the mark or brand in connection with the product, successful marketing techniques, and widespread product awareness and popularity. Protection is not offered for functional aspects of a product which are essential for competitors to use and for which there are no comparable…

Posted in alcohol beverage law, trademarks | Tagged intellectual property, IP, trade dress | Comments Off