What Rogue One Can Teach You about… Trade Dress?

December 2016

Whether you plan to be there opening night, are willing to wait for the crowds to die down, or just can't understand the hype, you probably have heard that Rogue One: A Star Wars Story is likely the hottest ticket this December.

Being lawyers, we see the film as a basis for discussing how film trailers can help illustrate concepts of trade dress.

Trade dress is a legal concept akin to trademark (and also protected by the Lanham Act §43(a))1 and was originally intended to protect the packaging or "dressing" of a product (as opposed to a "trademark," which is intended to protect a product marking). Trade dress is commonly thought of as protecting the "look and feel" of a product. Trade dress is often described as the total image and overall appearance of a product, or the totality of the elements, and may include features such as size, shape, color or color combinations, texture, or graphics.2 In business or marketing, trade dress often refers to the "branding" of a product or product line. The recognition of trade dress as a form of intellectual property is essentially to prevent product design that appears confusingly similar to other products, even if the design lacks direct copying of product markings.

Because of its imprecise nature, trade dress is sometimes hard to define. What does it mean to have a similar "dressing" to another product even if specific product markings have changed? This can be addressed by comparing films and live theater. In live theater, the term "set dressing" usually refers to elements of the background or setting. While set dressing typically doesn't include costumes, props, and other elements with which the actors interact, for the purposes of this discussion, many of those things can effectively be considered set dressing because they behave more like background elements than plot elements. A simple example is the use of costumed (or animated) "extras" to make a scene crowded. The purpose of these "extras" is usually more for setting than to advance dialogue.

This might become clearer from watching film trailers, for example, the trailers for Rogue One (which are available here and the Star Wars channel on YouTube). In particular, watch the initial teaser trailer, but stop the trailer at the 1:30 mark.

Even if you did not access the trailer from a Star Wars site, you probably sensed from the start of the trailer, that Rogue One is part of the Star Wars saga. But what about the trailer tells the viewer that? It's not really "marking," as the phrase "Star Wars" appears only after the point where we asked you to stop, as a subtext to Rogue One, and for only about 3 seconds.

However, the trailer "looks and feels" like Star Wars from the very start. Namely, the set dressing tells you it's a Star Wars film. What did you see that actually identifies Star Wars? It isn't any of the original stars, but mostly the background imagery around the characters (that is, the set dressing).

A couple good examples of evocative set dressing in the teaser trailer are the costumes of the rebellion troopers seen at the 10-second mark (specifically those helmets and chin straps) and the display screens and holographic projector around Jyn Erso that appear at the 23-second mark. These are immediately recognizable from Star Wars: A New Hope. The whole setting of the first 30 seconds is recognizable as belonging to a Star Wars rebellion base because of the set dressing. Most notable is the silhouetted X-Wing visible in the background at the 17-second mark.

This use of set dressing around the actors continues throughout the trailer, and it's clear that the "tease" of the trailer is your knowing that it's for the next Star Wars film, without its really saying so until the end. It has the "look and feel" of a Star Wars film because of the similarity of set dressing. If the part of the trailer that followed where we asked you to stop, had actually said that the trailer was for a film of a different series, the consumer would likely have been baffled. Trade dress protection is designed to protect the consumer from that type of confusion. To illustrate this, watch the teaser trailer for Austin Powers, the Spy Who Shagged Me, which initially parodies the set dressing of Star Wars to create confusion and set up a joke about the similarity of its release date to that of Star Wars: Episode One.

You would probably recognize these concepts in other trailers for Rogue One or trailers for other movie sequels.

Whenever you watch Rogue One, you might well find yourself thinking about how a film set is like trade dress. If you have any questions, or if you think you have some trade dress to protect, please feel free to contact one of our intellectual property attorneys.

1 15 USC §1125(a).
2 See e.g., Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 764 n.1, 23 USPQ2d 1081, 1082 n.1 (1992).