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Trade dress encompasses the design and appearance of a product together with all the elements making up the overall image that serves to identify the product presented to the consumer. Trade dress protection extends to business establishments. The statutory protection afforded to trademarks extends to trade dress. Additional sources of trade dress protection are found in state law.
To succeed on the merits of a trade dress infringement claim, a plaintiff must demonstrate: (1) its trade dress is distinctive, and; (2) there exists a likelihood of confusion between its product and the alleged infringer's product. For trade dress to be deemed inherently distinctive, it must serve as an indication of origin, so that a consumer would readily rely on it to distinguish it from competitors. Confusion is assessed like confusion in a trademark case.