Editing Trade dress (section)

=====Distinctiveness=====
To gain registration in the Principal Register or common law protection under the Lanham Act, a trade dress must be "distinctive."  This means that consumers perceive a particular trade dress as identifying a source of a product.<ref name="twopesos"/>

Claimed trade dress in the product design—as opposed to product packaging—context can no longer be "inherently distinctive"; it must acquire distinctiveness through "secondary meaning".<ref>{{cite web|title=''Wal-Mart Stores, Inc. v. Samara Brothers, Inc.'', 529 U.S. 205, 120 S. Ct. 1339, 146 L. Ed. 182, 54 USPQ2d 1065 (2000)|url=https://scholar.google.com/scholar_case?case=11551321958641509496|website=Google Scholar|access-date=12 September 2017}}</ref> Distinctiveness through secondary meaning means that although a trade dress is not distinctive on its face, the use of the trade dress in the market (the "goodwill" of the trade dress) has created an association between that trade dress and a source in the mind of the consumer.

Although the law is evolving, as it stands now, product packaging (including packaging in very general terms, such as a building's décor) may be inherently distinctive.<ref name="twopesos"/> However, product design, that is the design or shape of the product itself, may not be inherently distinctive, and must acquire secondary meaning.