Most business owners are familiar with the three main types of intellectual property—copyrights, trademarks, and patents—but many are unaware of a lesser-known protection known as trade dress. Trade dress applies to visual elements of a product that indicate its origin, such as color, shape, or packaging. When used correctly, it can be just as powerful as any other IP tool.

But as a recent case shows, not all trade dress claims succeed—especially when the element in question is too common to own.

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What Is Trade Dress?

Trade dress refers to the distinctive visual appearance of a product that signals its source to consumers. Classic examples include:

• The green and yellow color scheme of John Deere tractors
• The unique contour of a Coca-Cola bottle
• The orange and brown packaging of Reese’s peanut butter cups

When trade dress is successfully registered, it protects these identifiers from use by competitors in the same market, thereby preventing consumer confusion and brand dilution.

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The MediSafe Case: A Color Too Common

In a recent decision, the United States Patent and Trademark Office (USPTO) and Trademark Trial and Appeal Board (TTAB) rejected an application from MediSafe Technologies, who sought to trademark a specific shade of green used in their chloroprene medical examination gloves.

To evaluate this, the court applied the Milwaukee test, a two-part framework for assessing color-based trade dress claims:

1. Identify the relevant category of goods or services.
2. Determine whether the color is associated with that category in general (generic) or with a single source (distinctive).

In simpler terms: Is the color unique to MediSafe, or is it used widely by other manufacturers?

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What the Court Found

The court identified 15 different sources selling medical gloves using the same or nearly identical green shade—none clearly associated with MediSafe. While the company claimed responsibility for 10 of those sources, it failed to provide solid evidence linking itself as the actual producer.

Additionally, the supporting research was flawed:

• Questionnaires used leading questions
• Studies were conducted internally, not by a neutral third party

These shortcomings led the court to rule that the green color was too generic for trade dress protection.

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Takeaways for Small Business Owners

If you’re looking to file for trade dress protection, especially for a color, keep the following in mind:

✅ Ensure Your Color Is Unique

Your brand’s color must not be widely used across the same product category. Perform market research or work with a legal team to verify this before applying.

✅ Establish a Strong Association

The color must clearly identify your brand, not just the product type. If consumers don’t associate the color with your business, the application is likely to fail.

✅ Prepare Robust Evidence

Avoid biased research and instead rely on third-party studies, consumer surveys, and industry recognition to strengthen your case.

✅ Understand the Legal Standard

With the Milwaukee test now guiding future evaluations for color marks, understanding this test is essential for any trade dress claim.

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Your Brand Deserves the Right Protection

While trade dress protection can be a powerful asset, it’s also one of the most complex to secure, especially for color marks. At Mindful Counsel, we specialize in crafting detailed and persuasive arguments to support your brand identity and guide you through the application process.

Whether you’re starting from scratch or refining an existing brand, our goal is to ensure your business is legally protected and strategically positioned to thrive.

Contact us today to learn how we can help you develop and protect your brand with clarity and confidence.

 Guest post by Cameron Pickle, Associate Law Clerk

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