To gain registration in the Principal Register or common law protection under the Lanham Act, a trade dress must not be “ functional .” That is, the configuration of shapes, designs, colors, or materials that make up the trade dress in question must not serve a utility or function outside of creating recognition in the consumer ’ s mind.

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.

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