Trade Dress 101: The IP Protection Most Founders Don't Know They Need

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Ask most brand founders what intellectual property protections they have in place and you'll typically hear the same answers: a trademark on the name, maybe a copyright on the logo, an LLC for the business. What rarely comes up is trade dress — and the story of Redemption Whiskey and Bulleit is exactly why that gap can be dangerous.

This is a deep dive into what trade dress is, how it works, what the Redemption case tells us about the power and limits of visual brand protection, and what product-based founders should do to protect their brand identity before a competitor or a court forces the issue.

What Happened: From Lawsuit to Relaunch

In 2017, Diageo filed suit against Deutsch Family Wine & Spirits, the parent company of Redemption Whiskey. The claim was that Redemption had redesigned its bottle to closely mimic the visual identity, "the trade dress" of Bulleit Frontier Whiskey. Bulleit's bottle is distinctive: an apothecary-inspired canteen shape, embossed brand name in the glass, and a label positioned in the lower half of the bottle. It's a design that evokes 19th-century frontier America and has been part of Bulleit's brand identity since its founding.

Redemption's redesigned bottle, Diageo argued, adopted too many of those same visual elements and would cause consumers to associate Redemption with Bulleit, diluting the distinctiveness of Bulleit's famous trade dress.

A jury agreed, not on the grounds that consumers would be confused into buying the wrong product, but on the narrower grounds that Redemption's packaging diluted Bulleit's protected visual identity. The 2nd U.S. Circuit Court of Appeals affirmed the ruling in 2024. Redemption was ordered to stop selling its existing bottles and to redesign them.

The relaunch arrived in April 2026: a new square-shouldered bottle embossed with an eagle in mid-flight, a reformulated bourbon now bottled at 92 proof, and a new brand philosophy — Choose Redemption. Rise Above. It is, by most accounts, a strong comeback. But it came at the cost of years of litigation, legal fees, forced rebranding, and the disruption of an established product line.

Trade Dress 101: A Legal Definition

Trade dress is a form of trademark protection that covers the total image and overall appearance of a product or business. Where a trademark protects a name or logo, trade dress protects the way a product looks — its packaging shape, color scheme, label design, texture, size, and the overall commercial impression it creates.

To be legally protectable, trade dress must meet two requirements.

Appearance must be distinctive

Visual appearance must be inherently unique or have acquired distinctiveness through long-term, exclusive use in the marketplace.

Think Owens Corning Pink Panther Insulation Foam Board.

Appearance/Packaging must be non-functional

The protected visual elements do not serve a utilitarian purpose. You cannot trademark the shape of a bottle if that shape is necessary for the bottle to function. But you can trademark a distinctive design that serves primarily to identify the brand's source.

Think of the shape of the glass Coca-Cola bottle.

Trade dress protection can be registered with the USPTO, and registering it strengthens your legal position significantly — but it can also arise from unregistered rights based on consistent, long-standing use. The challenge with unregistered trade dress is that it's harder to enforce and easier for a competitor to challenge.

Dilution vs. Confusion: A Critical Distinction

Most people are familiar with the concept of trademark infringement based on consumer confusion: if your name or logo is so similar to a competitor's that consumers might mistake your product for theirs, you're infringing. But the Redemption case was decided primarily on the basis of dilution, a different and, in some ways, more powerful legal theory.

Trademark dilution does not require proof that consumers were actually confused. It requires proof that the infringing use diminishes the distinctiveness or reputation of a famous mark. There are two types: blurring (making a famous mark less unique by associating it with unrelated goods) and tarnishment (associating

What This Means for Product Brand Founders

Let's translate this out of the spirits industry and into the reality of building a product brand in 2025 and 2026.

If you are in beauty, food and beverage, apparel, supplements, candles, home goods, or any other physical product category, your packaging is your first impression. It's also an asset — and if it's distinctive enough, it's a legally protectable one.

Here is where most product founders are exposed:

• They spend real money on packaging design and brand photography but never legally document or protect the visual identity

• They conduct trademark searches only on the name, not on the visual elements — leaving trade dress exposure unaddressed

• They don't assess competitors' packaging before launching, creating the risk of unknowingly infringing

• They have no IP strategy that accounts for visual brand identity as a business asset

The reverse risk is equally important. If you have built a distinctive visual identity and a competitor copies it, trade dress protection is what gives you standing to act. Without it, your options are limited and expensive.

Your brand's visual identity — your packaging, label, color palette, and product design — is protectable IP. Most founders don't know this until it's too late.

How to Protect Your Brand's Visual Identity

Step 1: Conduct a comprehensive clearance search

Before launching or scaling a visual brand identity, assess the landscape. This means looking at existing registered trade dress, competitors' packaging, and the overall visual conventions in your category. Your attorney should be doing this alongside a name clearance search — not instead of it.

Step 2: Register your trade dress

If your packaging or visual identity is distinctive, register it with the USPTO. A federal registration gives you nationwide rights, a legal presumption of validity, and the ability to use the ® symbol. It also puts competitors on notice and makes enforcement significantly more straightforward.

Step 3: Document your brand identity consistently

Courts look at how long and how consistently you have used a trade dress as evidence of distinctiveness. Maintain records of your packaging history, brand style guides, launch dates, marketing materials, and sales data. This documentation becomes critical in any future enforcement or defense.

Step 4: Monitor the competitive landscape

Trade dress protection is only as effective as your enforcement. If a competitor launches packaging that copies your look, you need to act quickly. Extended inaction can be used against you in litigation. A trademark monitoring service — or regular legal check-ins — can help you catch issues early.

The Bigger Picture: Your Brand's Look Is a Business Asset

Redemption Whiskey is rebuilding. By all accounts, the relaunch is strong: award-winning bourbon, distinctive new packaging, and a clear brand direction. The brand's president put it well:

Setbacks aren't the end of the story. They're often the beginning of something stronger.

That is a powerful perspective. But the founders I work with don't have the resources of Deutsch Family Wine & Spirits to absorb years of litigation, forced redesigns, and distribution disruptions. For the brand builders in Atlanta's entrepreneurial ecosystem —the product founders, the beauty entrepreneurs, the CPG founders, the apparel brands—protecting your visual identity early is not optional. It is foundational.

Your brand's look is an asset. It deserves the same legal protection as your name.