Also known as: tout-ensemble · overall impression · totality
Written by attorneys · grounded in primary & secondary sources — see below
The overall visual impression created by the combination of a product's design features, packaging, and presentation as a whole.
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A beverage company sues a competitor over similar bottle shapes and label layouts. The court evaluates the tout ensemble of the overall visual impression created by the combination of design features, packaging, and presentation to decide whether trade dress infringement occurred.
A furniture maker claims protection for a distinctive chair silhouette and cushion arrangement. The court examines the tout ensemble of the product's design features, packaging, and presentation as a whole to determine whether the combination creates a protectable trade dress.
Two snack brands dispute the appearance of resealable bags with distinctive graphics. The court reviews the tout ensemble of the overall visual impression created by the combination of design features, packaging, and presentation to assess likelihood of consumer confusion.
A cosmetics firm alleges copying of its bottle shapes, cap styles, and color scheme. The court weighs the tout ensemble of the product's design features, packaging, and presentation as a whole to decide whether the overall impression merits protection.
A clothing designer sues over similar hang tags and folding techniques. The court considers the tout ensemble of the overall visual impression created by the combination of design features, packaging, and presentation to evaluate infringement.
A soda producer seeks protection for its can graphics and six-pack carrier. The court analyzes the tout ensemble of the product's design features, packaging, and presentation as a whole to determine whether the combination qualifies as protectable trade dress.
Courts protect the overall visual impression created by the combination of features rather than any single element in isolation. A merchant may claim protection for the entire ensemble or for a subset of features, such as container shape alone.
Supporting sources
Yes. Protection may extend to the complete combination or to selected features, such as the distinctive shape of a container independent of color or labeling.
Supporting sources
…in our case law—we have indeed held that trademark rights can vest even before any goods or services are actually sold if "the totality of [one's] prior actions, taken together, [can] establish a right to use the trademark." New West , 595 F.2d at 1200. Under New West , however, West Coast must establish that its e-mail…