Trade Dress History

fluid and developing state of trade dress law in the United States, a review of basic principles and some recent developments may be of interest to those contemplating trade dress registration or litigation in this country.
Trade dress creates a visual impression which functions like a word trademark. As the U.S. Supreme Court confirmed in Two Pesos and Qualitex there is really no difference between a word trademark and a visual trademark except that a word mark may be spoken while trade dress and color per se must be seen to make a commercial impression. In Two Pesos the Supreme Court said not only that restaurant decor may be protected as trade dress, but also that restaurant--and other trade dresses--may be inherently distinctive and protectable

The distinctive pinched in shape of the Haig & Haig Scotch bottle is a registered trademark on the Principal Register. Ex parte Haig & Haig Ltd. . The curved and ribbed shape of the old COCA-COLA bottle is also a registered trademark on the Principal Register.
The overall design of a FERRARI 365 GTB/4 automobile has been protected against duplication as a toy car. Ferrari SpA v. McBurnie .
The shape of a MOBIL gas pump, which used to have a distinctive round head, was protected as a trademark in a case where the defendant was selling non-MOBIL gas from a round-headed MOBIL pump with the word MOBIL masked over. Mobil Oil Corp. v. Auto-Brite Car Wash, Inc. .
The overall look of a greeting card line, the design and format of magazine covers, the shape and a combination of physical features on a briefcase, and the layout of point of sale displays have been held to be protectable trade dress. Even the shapes of buildings have been protected as trade dress.
3.2 Trademark Registration for Trade

There are two kinds of "functionality": de facto and de jure.
De facto functionality simply means that the product or packaging performs the function that it was intended to perform. A COCA-COLA bottle's function is to hold COCA-COLA beverage and permit it to be poured out of the bottle, a job it certainly performs. But that does not make the bottle's shape or ribbing "functional" for trade dress purposes because those features are not necessary for the bottle to do its job.
A feature is de jure functional if competitors must use it in order to compete effectively. The U.S. Supreme Court has defined a functional feature as one which
...`is essential to the use or purpose of the article or [that] affects the cost or quality of the article,' that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage. Qualitex, citing Inwood Laboratories, Inc. v. Ives Laboratories, Inc. . The Court of Appeals for the Federal Circuit recently