In Door County, Wisconsin, there’s a restaurant with a grass roof. And on that roof? There’s a small herd of goats. It’s the sort of thing that helps you remember a place. And even though a herd of goats might not constitute a trademark, their existence atop the restaurant has been rightly confirmed as trade dress.

As Bloomberg Law reported, the restaurant recently fought off a challenge to its goats. A New York lawyer tried to have the goats removed, claiming the setup was offensive. But his petition was denied. The federal circuit court responsible said the lawyer had failed to show that he had been harmed by the restaurant’s trade dress.

When trade dress isn’t about goats

Of course, trade dress isn’t always about goats. In fact, it’s more often about other things. Most trade dress cases have less to do with getting goats off Wisconsin roofs and more to do with recovering business lost to copycats.

One of the less well-known aspects of intellectual property law, trade dress refers to all the recognizable ways a good or service is “dressed up.” For a long time, this simply meant the way a product was packaged. More recently, though, trade dress has been more broadly interpreted. Anything may be part of trade dress, provided:

  • It helps shape the overall image of a product, venue, good or service
  • It is decorative, rather than functional
  • It is uniquely distinctive or has acquired a distinctiveness thanks to the continuous, exclusive use of key elements
  • It can be defended as a whole

If it seems like these standards suggest trade dress would apply to all kinds of things? They do. Examples include not only things like Coca-Cola’s distinctive glass bottle or the iconic design of Converse sneakers, but also restaurant “atmospheres,” comedians’ catch phrases and even a trade show’s registration process.

How can you protect your trade dress?

One way to protect your trade dress is to register it. You don’t have to register your trade dress to fight against infringement, but it can help. Especially if you’ve invested a lot of time and money in making something look just right, you might want to take the extra step to ward off imitators.

Once you’ve established your trade dress, you can enforce it much the same way you’d enforce any other intellectual property. Watch for trespasses. Show you were there first. Show how the imitation damaged your business. Get the imitator to back off.

Just don’t try to establish the “goats on a grass roof” thing. That’s already been done, and the courts are still backing it up.