How can I define if an item fits as having a trade dress?

Trade dress refers to characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers. Trade dress may be registered with the United States Patent and Trademark Office (PTO) in either the Principal Register or the Supplemental Register. A trade dress must not be functional. 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. Trade dress is not patentable, just as trademarks and service marks are not patentable. You cannot use a trade dress that is owned by another where the goods or services are similar. A design patent protects the appearance of a useful article. You cannot make, use, or sell a product that has the same appearance as a product protected by a design patent unless you have permission of the design patent owner. You can copy any product that is not protected by a utility or design patent, but you cannot copy the trade dress for that product.

Assume that every product has some form of protectable trade dress. If true, why copy - because to do so invites a lawsuit from the originator. You are correct that trade dress claims, like design patent claims, cannot cover functional aspects of a given product. Instead, these two forms of intellectual property protection protect the non-functional aspects of a given product - which are not dictated by functional requirements. Design patent protection lasts for 14 years - and after that - the product design can be copied by anyone, as the design enters the "public domain." Trade dress protection can last (in theory) forever - as long as it serves as a "source indicator" for the product. The best thing to do is create a "look" that is unique to you for your product. Select a design that tells the public "this comes from ME". Take the time to be creative and consistent - to build a "look and feel" for your product that is yours alone.

You may be mixing up two types of intellectual property protection. A patent does not issue on trade dress, but a "design patent" can issue to protect the non-functional features of a device. "Trade dress" is a term used to describe the visual appearance of a product or its packaging. A design patent is to protect the ornamental features of a functional item, like the shape of a classic Coca Cola bottle. Even though the bottle is functional in that it holds the Coke, the ornamental features of the bottle (e.g. the skinny waist and vertical indententions) are not functional. Design patents are good for 14 years and cannot be renewed. Trade dress is more akin to trademark. Trade dress, like trademark is to protect the consumer from being fooled as to the origin of a product. In order to be protectable, trade dress usually has to be "distinctive" that is to say that the consuming public recognizes the trade dress as originating from a certain supplier. Thus, once the consuming public started to recognize soft drinks in the distictive bottle as originating from the Coca Cola Company, Coca Cola aquired trade dress protection. Trade dress protection can last indefinitely? so even though Coca Cola's desing patent expired over 80 years ago, they still have some measure of protection for the bottle.

Trade Dress is just like any other type of trademark. It has nothing to do with patents and everything to do with a particular, unique look or style that identifies the company providing the goods or service. Go in to any fast food restaurant without reading the exterior signage and you should be able to tell immediately whether you can order a Big Mac or a taco or a sub sandwich just by the color of the paint on the walls, the style of the uniforms on the servers, the way they greet you, and the layout of the store. that's trade dress. You may be confusing it with a design patent where a common product like a vacuum cleaner looks and works one way if it's a Hoover and another way if it's a Dirt Devil but the underlying produce is pretty much the same.

Yes, you *are* confused. First off, one cannot patent "trade dress", although a design patent can be used to protect orginal ornamental design features. Second, you may be omitting to notice that a trade dress and/or trademark must be *distinctive* to be protectable and not confusingly similar to generics(e.g. laptop features that look the same and/or similar would not be protectable without more). Last, it is possible to claim patent rights for ornamental features as well as functional features, however the ornamental aspects would be claimed in a design patent application and the functional aspects would be claimed in a separate utility patent application (although both of these things could be described in either one, and later claimed in a continuation applicatoin). Hope this helps sort things out for you. If you believe your designs and functions may be valuable, and can afford it, I'd strongly recommend that you engage a good patent attorney.