The term Trade Dress is normally used in the context of a claim for passing-off to mean the visible external appearance of goods in the form in which they are presented to the public for purchase. If the goods are sold in packages, the Trade Dress is the appearance of the package taken as a whole. If they are sold or displayed unpackaged, then the Trade Dress must relate to the goods themselves. For example, a lemon shaped lemon juice dispenser was protected.
The Trade Dress of a product plays a crucial role in the purchase process since it is the chief means to attract customers. The importance of visual impact is well-known: what appeals to the eye is crucial. The product’s Trade Dress must be characteristic of a particular source and have the effect of making it recognizable on its own. The appearance of a product is not always linked to a trade mark, and in some cases, the consumer may rely on the appearance rather than the trade mark to identify the product.
Colour by itself, even when combined with size, may not be sufficient to be protected since it is difficult to establish it is distinctive in the sense required by the tort. However, if colour is combined with other distinctive elements it may be protected, for example the shape and colour of a snow brush and ice scraper.
The plaintiff does not need to establish that the totality of its Trade Dress was copied as the plaintiff only needs to show a misrepresentation leading or likely to lead the public to believe that the goods or services offered by the defendant are the goods and services of the plaintiff.
The addition of distinctive matter by a defendant may eliminate the probability of passing off if it is sufficient to avoid the making of any misrepresentation. The use of a disclaimer may also assist in establishing a defence if its use would likely bring the qualification home to all types of potential customers including those with imperfect or partial memory.
An excerpt from John McKeown’s April Mailer where he discusses trade dress.