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Exploring the Nebulous Boundaries of Trade Dress

Now that we are in the digital age, questions have been raised about the trade dress of websites and apps.

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When thinking about intellectual property (IP), most people likely think about patents, trademarks and copyrights. In the most simplistic terms: patents protect novel and non-obvious inventions; trademarks protect a business’ brand names and logos; and copyrights protect tangible, fixed works of creative expression. Trade secrets are also increasingly being recognized as the fourth main pillar of IP and can run the gamut from things like customer lists and pricing, to inventions that may or may not be patentable. Every business has some or all of these forms of IP, but what about lesser known forms of IP such as “trade dress”? Trade dress is a kind of trademark that protects the overall look and design of products and packaging. Many (if not most) product companies and retail establishments have protectable trade dress, although not all companies recognize that they have it (and therefore don’t protect it!).

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