Differences Between a Trade Mark and a Trade Dress

George Raptis

• 29 June 2021
• 2 August 2022
• 5 min read

Even though the terms ‘trade mark’ and ‘trade dress’ may seem interchangeable, there are some key differences between the two. You should know the difference between the two terms to ensure that your business’ brand is adequately protected. This article outlines the key differences between a trade mark and a trade dress. 

Trade Mark or Trade Dress? 

A trade mark can distinguish your goods or services from your competitors in the market. Trade marks provide you with the exclusive right to use, license and sell your branding in connection with particular goods or services. Under Australian trade mark law, a registered trade mark typically protects the features that make a business’ brand unique. This includes its:

• name;
• logo; or
• catchphrase. 

For example, there is currently a trade mark registration for the ‘Happy Little Vegemites’ tune. Bega Cheese Ltd owns this sound trade mark. This means that it has the exclusive right to use, licence, and sell its trade marked tune. 

Similarly, trade dresses can distinguish goods or services from others in the market and give you the exclusive right to use, licence, and sell the mark. However, trade dress protection covers a combination of elements that make your business brand unique. 

For example, the recognisable packaging for Vegemite products has been successfully registered for a trade mark by Bega. This mark protects the shape of the jar. It also protects its yellow lid, yellow-coloured label, diamond-shaped red logo, and the contrast between the yellow label and the brown product. In combination, these elements are Bega’s Vegemite trade dress. 

In this sense, a trade dress protects the overall image or visual impression of your goods or services. 

Registration Requirements

If you want to register a trade mark, it must meet certain criteria. A trade mark must be capable of distinguishing your goods or services from your competitors, and must not:

• contain any scandalous material; 
• deceive or confuse consumers; and
• be substantially identical or deceptively similar to a trade mark that is already registered. 

When applying for a trade dress, the elements which make up the trade dress must also satisfy the requirements listed above for registration as a trade mark. Nowadays, commonly registered types of trade dresses include the distinctive shapes of a product’s packaging or its distinctive colour. However, what qualifies for a trade dress often depends on whether consumers associate your trade dresses with your company and its goods or services. 

For example, Cadbury sought to register its signature purple colour as a trade dress for its chocolate products. It could only convince the Registrar that the trade dress was distinctive concerning blocks of chocolate and boxed chocolate. 

Business owners have become more creative with their business’ branding over time and seek protection for many different aspects of their branding. However, the Registrar makes the ultimate decision on whether your trade dress is sufficiently distinctive. Overall, you should ensure that your trade dress has a high proportion of distinctive elements.

Importance of Trade Marks and Trade Dresses

Both trade marks and trade dresses allow businesses to protect the features that make their business identifiable. You can enforce your exclusive rights under a trade mark or a trade dress against any competitor who may infringe on your rights. For example, suppose another business copies the registered trade dresses you use for your food products when producing their own food product. In that case, you can pursue legal action where they have infringed on your intellectual property rights. 

Ultimately, a trade mark or a trade dress can ensure that your business’ brand retains its competitive advantage by remaining distinguishable from other competitors. This can result in increased brand awareness over time and add value to your business’ goodwill. 

Key Takeaways 

Both trade marks and trade dresses can distinguish your goods or services from others in the market. However, a trade dress can protect a combination of elements that make your business’ brand unique such as the shape of a product, its colour and its logo. In this sense, a trade dress protects the overall image of your goods or services, whereas a trade mark might protect a single aspect. If you require further legal assistance with trade marks or trade dresses, our experienced trade mark lawyers can assist. Call us on 1300 657 423 or complete the form on this page.  

Frequently Asked Questions