Trade dress protection is a form of trademark protection and is registerable as either a trademark or service mark. Trade dress protects the visual appearance of the mark and serves to signify its source.
Trade dress is usually defined as the “total image and overall appearance” of a product, or the totality of the elements, and “may include features such as size, shape, color or color combinations, texture, graphics.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 764 n.1, 23 USPQ2d 1081, 1082 n.1 (1992).
One of the most famous trade dress marks in the world is arguably the Coca-Cola bottle’s shape. The Coca-Cola bottle shape has been a federally registered trademark since 1977, with its first use dating back to 1916.
To receive trade dress protection, the trade dress itself must be inherently distinctive or acquired secondary meaning. A trade dress is inherently distinctive if it is “unusual and memorable, conceptually separable from the product, and likely to serve primarily as a designator of origin of the product.” Duraco Products Inc. v. Joy Plastic Enterprises Ltd., 40 F.3d 1431 (3d Cir. 1994). However, similar to design patents, a trade dress’s functional aspects are not protectable under trademark law.
Overall, what constitutes a trademark is very broad. Almost anything that is unique can function as a trademark for your brand.