Like other business owners, you spent a tremendous amount of time, money and effort deciding how to present your product or service to your customers. If you did a good job, your customers can easily locate what you have for sale. The visual image of your product or service is your company’s trade dress.

Because you have an ownership interest in what your company uses for promotional purposes, trade dress is eligible for protection under U.S. trademark law. If you suspect that another venture is infringing on your trade dress rights, you have some options. Here are three steps for proving an infringement claim:

  1. Demonstrate trade dress is not exclusively functional 

The law does not protect functional trade tress. Instead, it offers safeguards for dress that is primarily not functional. If your company sells bottled water, for example, the bottle is a functional vessel for delivering the product to your customers. This probably places the bottle outside the realm of trade dress protection. On the other hand, if you design a star-shaped bottle to hold your product, the bottle is not primarily functional. This makes it eligible for protection under trade dress law.

  1. Show trade dress is inherently distinctive 

To be eligible for protection, your trade dress must be distinctive rather than generic. To remove doubt, you can register your company’s trade dress with the U.S. Patent and Trademark Office. Otherwise, you must demonstrate that the trade dress is unusual, distinctive, fanciful or unique. You may also show that your customers identify your trade dress with your product or service.

  1. Prove the likelihood of consumer confusion 

Finally, for a successful trade dress claim, consumer confusion is essential. To prove this element, you must show that customers are likely to mix up your product or service with the one offered by the infringing party. Alternatively, you may demonstrate that the infringement causes your customers to believe that you have a connection with the infringer.

Because you have invested in trade dress, you must protect your ownership rights. By understanding how to prove an infringement claim, you can be certain your company receives full benefit of its trade dress for years to come.