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Intellectual Property

Sep. 30, 2026

Your patent file may defeat your trade dress

Product features that improve performance, reduce costs or give competitors a needed advantage cannot receive trade dress protection, so companies should examine patent filings, marketing claims and design choices before asserting trademark rights.

Chang Kyoung (CK) Choi

Dr. Choi is an Associate Professor
Michigan Technological University

Mechanical and Aerospace Engineering

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Roberto Escobar

Email: bobby@elaw.business

Roberto "Bobby" Escobar is general counsel, and an environmental and labor and immigration advisor.

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Your patent file may defeat your trade dress
Shutterstock

A company spends years making a product visually distinctive. Consumers come to recognize its shape, color, configuration or packaging. A competitor then adopts a similar look, and management's reaction is immediate: "That is our trade dress."

Perhaps. But before the cease-and-desist letter goes out, ask a more basic question: Does the feature identify who made the product, or does it make the product work--or compete--better?

That question lies at the heart o...

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