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Trade dress vs. trademark: Protecting the ‘look and feel’ of your retail brand

2026-04-24T12:47:09Z

You spent months perfecting your store layout and product packaging. Customers recognize your brand instantly from the unique colors, shapes and overall design you created. Then a competitor copies your distinctive look almost exactly. You wonder if trademark law protects you, but your brand's visual identity might need different legal protection called trade dress.

What is the difference between protections?

Most business owners know about trademarks but overlook trade dress protection for their brand's overall appearance:

Trademarks protect specific elements: Your business name, logo, slogan or symbol gets trademark protection when you register it and use it in commerce.
Trade dress protects the total package: The overall look, feel and image of your product or store creates a distinctive commercial impression that customers associate with your brand.
Examples of trade dress: The shape of a Coca-Cola bottle, the layout and design of an Apple Store, the distinctive pink color of Owens Corning insulation or the unique decor of a restaurant chain all qualify as protectable trade dress.
Why it matters: Competitors can avoid your trademark by changing your logo slightly but still copy your overall brand aesthetic to confuse customers.

Trade dress protection stops others from copying the non-functional design elements that make your brand recognizable. However, you cannot protect features that serve a useful purpose beyond attracting customers.

How can you protect your brand's distinctive look?

Trade dress protection requires proving customers recognize your unique design and link it with your business specifically. Your design must be distinctive either through inherent uniqueness or through extensive use in the marketplace over time. You cannot claim trade dress for basic industry-standard designs that all competitors use. These actions are a good step towards building brand recognition:

Registration with the United States Patent and Trademark Office strengthens your rights but common law trade dress protection exists even without federal registration
Document how long you have used your distinctive design and gather evidence showing customer recognition
Keep records of your marketing materials, customer surveys and sales data that demonstrate your brand's visual identity

Legal guidance helps determine whether your brand's look qualifies for trade dress protection and how to enforce your rights against copycats.

When Business Growth Signals the Need for a Reorganization

2026-03-02T16:28:09Z

As a business grows, the legal structure that once worked may no longer provide the clarity or protection you need. Expansion, new partners, valuable intellectual property, or increased liability can expose gaps in your original setup.

A business reorganization allows owners to realign their company structure with current operations and long-term goals. Whether you are preparing for growth, addressing ownership changes, or managing risk, restructuring can help create a more stable foundation.

1. Strengthening liability protection as your business expands

Many businesses begin with a straightforward entity structure. Over time, however, increased revenue, additional employees, or multiple business activities can create new exposure.

A reorganization can help ensure your legal structure keeps pace with your operations by clarifying ownership, separating business functions, and reinforcing the boundary between personal assets and business liabilities. When structured properly and maintained correctly, this can reduce risk as the company grows.

2. Protecting intellectual property from operational risk

Trademarks, copyrights, and other intellectual property are often among a company’s most valuable assets. Through reorganization, these assets may be held separately and licensed to the operating business.

This approach can help protect core intellectual property while still allowing the business to use it in daily operations. Proper planning and documentation are critical to ensure transfers and licenses comply with Kentucky law and existing agreements.

3. Reducing exposure to unintended liability during restructuring

Business reorganization often involves reviewing contracts, leases, financing arrangements, and vendor relationships. While certain liabilities may not automatically transfer during restructuring, risk can arise if obligations are assumed or overlooked.

A careful review during the reorganization process helps identify potential exposure and reduce the chance that liabilities follow the business unintentionally. This step goes beyond filing documents and requires coordinated legal planning.

4. Resolving ownership issues while preserving business value

Changes in structure often bring ownership or valuation questions to the surface. In many cases, these issues can be resolved through negotiation or mediation rather than litigation.

Private dispute resolution can help owners address buyouts, ownership adjustments, or governance changes while minimizing disruption to operations. Preserving business value is often a key goal during reorganization.

Planning for the next stage of your business

A well-designed business reorganization starts with a clear understanding of your current risks and future objectives. Reviewing governing documents, ownership structures, and asset placement can help identify areas that need adjustment before problems arise.

Working with a legal professional can help ensure your reorganization complies with Kentucky law and supports the long-term success of your business—while keeping personal assets appropriately protected.

5 essential steps to align business formation with IP strategy

2026-01-07T15:08:48Z

You can protect your ideas while building a legal foundation for your Kentucky tech startup by integrating your business structure with your intellectual property (IP) plan. Many entrepreneurs treat business formation and IP as separate tasks. However, the way you structure your company on day one dictates how well you can protect your innovations later.

1. Ensure the entity owns the trademark

One common mistake is registering a trademark in your own name rather than the name of your company. If you own the brand personally while the business uses it, you may create legal complications during future business valuations. When you begin the business formation process, ensure all brand assets like logos and slogans are legally assigned to the entity from the start.

2. Structure for first-inventor-to-file priority

If your business is based on a unique invention, the timing of your formation is critical. The United States operates under a first-inventor-to-file system for patent applications. Generally, priority is awarded to the first inventor to file for protection. It is important to note that inventors often have a one-year grace period to file after their own public disclosure under federal law, but waiting to file can still carry risks. Your business structure must be ready to handle the administrative weight of patent prosecution.

3. Clear the path for assumed names

Many startups use an assumed name, often called a "doing business as" (DBA) name. Filing an assumed name certificate with the Kentucky Secretary of State is a notice requirement and does not automatically grant you a trademark. While Kentucky law protects common law trademark rights established through the actual use of a name in commerce, you could still face litigation if your chosen name infringes on an existing federal trademark.

4. Protect trade secrets

Information like customer lists and business processes are often a startup's most valuable asset. To use the protections of the Kentucky Uniform Trade Secrets Act (KUTSA), you must try to keep your information secret. Your efforts must be reasonable for your situation. This often involves using nondisclosure agreements (NDAs). You should also use digital locks, like passwords, to limit who can see sensitive data.

5. Choose a structure for future growth

The way you form your business can help you get funding later. For example, a C-corp is often a top choice for tech startups that want venture capital. This structure can offer tax benefits for investors. However, many Kentucky founders choose an LLC because it is flexible and easy to run. You should pick an entity type that matches your long-term goals.

Moving forward with confidence

Setting up a company involves more than just filing paperwork. State laws regarding business names and trade secrets can be complex. Professional help is often needed to avoid mistakes. You should search the federal trademark database and state records before you commit to a name. Speaking with a lawyer can help ensure your business goals align with Kentucky requirements. To learn more, contact Laura Hagan, at Kerrick Bachert to discuss your specific situation.

Can I patent an idea?

2025-11-11T08:28:11Z

Protecting your intellectual property is crucial to help you succeed in the business world as there are always people out there looking to profit from the work of others. Yet, understanding how (and when) to obtain patent protection is not so simple. There are various ways available to protect intellectual property, but when, exactly, is a patent appropriate? Here’s what you need to know:

You cannot patent something if it is still just an idea

However great your idea is, you need to move forward with its manifestation, to some degree, before you can protect it with a patent. Patents can only cover things within the following four categories of intellectual property:

Processes (the means of doing something)
Machines (tangible items)
Manufacturing methods
Composition of matter

There are three categories of things that patents definitely cannot be used for:

Laws of nature
Natural phenomena
Abstract ideas

So, for example, Einstein would not be able to patent his law of relativity. Edison couldn’t patent electricity. Dali would not be able to patent the weird and wonderful ideas in his head when they were mere ideas. Other things, for example, artistic works, might in some cases be eligible for inclusion under a patent if they meet very specific requirements. But generally, they would be better covered by copyright, which is a whole different kind of legal protection. Securing intellectual property can be a game-changer for your Kentucky business. These protections keep your innovations safe from competitors and increase your company's market value and credibility. With a patent, you gain an advantage over others, attract potential investors, and can even earn extra money through licensing opportunities. As you can see, protecting your intellectual property is crucial but complicated, which is why you may want help to learn more. If you get it wrong, you may find out the protection you thought you had in place offers no real protection at all.

How do I know if someone is infringing on my trademark?

2025-09-09T20:14:43Z

Trademark infringement may occur when another business uses a name, logo or slogan that resembles yours and operates in a related market. This overlap can confuse customers and dilute your brand.

Signs your trademark might be at risk

You may notice signs that point to confusion between your brand and another:

Customers, vendors or callers contact you when they meant to reach someone else
Online searches show results that mix your brand with another
Social media posts or reviews link your business to a different company
Your business receives complaints about products or services you don’t offer

These signs do not establish infringement, but they may show confusion that deserves further review.

How similarity and market overlap affect infringement

When it comes to trademarks, infringement doesn’t require identical marks. Courts look at whether marks are similar in sound, appearance or meaning or could create confusion among customers. They also consider whether businesses serve the same customers or operate in related industries. In Kentucky, trademark protection generally tracks federal law under the Lanham Act, which the U.S. Patent and Trademark Office follows. You can also register a mark with the Kentucky Secretary of State. State registration doesn’t replace federal protection but may offer added benefits within the state. Similarity alone isn't enough to prove infringment. Other issue like how and where the marks appear in commerce and whether use of the mark is likely to cause confusion among consumers.

What to do if you notice these signs

If you notice signs of trademark misuse, you may want to take these steps:

Keep records of confusion, including screenshots and written complaints
Search the USPTO and Kentucky trademark databases for similar marks
Avoid contacting the other party directly
Request a legal review to understand your position and explore available options

Taking action early may help reduce confusion and protect your brand’s identity.

Protect what you’ve built

Your business reflects years of planning, sacrifice and hard work. When someone misuses your brand, they’re taking advantage of everything you’ve built. If you notice signs of infringement, consider speaking with one of our intellectual property lawyers, Laura Hagan and Lucas Wetton, who can help you protect your name, your reputation and your future.

Understanding employment contracts: What every business owner should know

2025-07-08T09:07:58Z

Hiring employees means creating clear and fair contracts. A well-written employment contract protects your business and sets the right expectations. If you're unclear on what to include or how to review these agreements, you're not alone.

Know what an employment contract should include

An employment contract outlines job duties, compensation, and work hours. It should also include terms for termination, dispute resolution, and confidentiality. Clear language avoids confusion and helps enforce expectations if a disagreement comes up. Don’t forget to define if the role is at-will or for a set term. You should also list any benefits like health insurance, paid time off, or stock options. If your business uses non-compete or non-solicitation clauses, make sure they are reasonable and enforceable in your state.

Common mistakes to avoid

Many contracts skip important details, like how performance will be measured or what happens if the company is sold. Others use vague wording that leads to disputes. Don’t copy generic templates off the internet—they might not follow your state’s laws or fit your business model. Check for outdated language or terms that might be unenforceable. Review your agreements regularly to make sure they still reflect your policies and the law.

Reviewing contracts before signing

Before anyone signs, take time to review the full agreement. Look for terms that could limit flexibility, such as long notice periods or automatic renewal clauses. Make sure everything promised verbally is written down. This avoids confusion later if questions come up. Ask your management team to read it too. A second set of eyes often spots red flags you might miss. Employment contracts can protect your business, but only if they’re clear and fair. When you know what to include and what to watch for, you reduce misunderstandings and build stronger work relationships.

Are employee noncompetes still valid in Kentucky?

2025-05-06T06:13:37Z

Employers have to accept significant liability whenever they hire new professionals. Companies have to earmark funds to cover their wages and their benefit packages. They have to provide training and safety equipment. Employment contracts play an important role in clarifying responsibilities during an employment relationship. In addition to talking about wages, disciplinary procedures and performance expectations, employment contracts might also include restrictive covenants. Noncompete agreements, or covenants not to compete, are among the most common restrictive covenants used by employers. Businesses operating in Kentucky may want to prevent workers from using their business relationships or access to trade secrets for the benefit of a competitor. A noncompete agreement can also prevent people from starting a competing business in the same industry. Noncompete agreements have become somewhat controversial in recent years. There have been attempts to reform laws and even to ban noncompete agreements at the federal level. Can businesses still enforce non-compete agreements against former employees under federal and Kentucky law?

Kentucky still allows for noncompete enforcement

Only a handful of states have outright prohibited non-compete agreements. Most states simply restrict them by imposing limitations on their use. Kentucky is one of those states. Employers need to ensure that their noncompete agreements are compliant with current legal standards. The agreement should include limitations regarding the geographic area to which it applies or the duration of the agreement to make it reasonable. The employee making the concessions should receive something of valuable consideration in exchange. Frequently, an offer of employment or a new position with the company after a promotion can constitute that valuable consideration. The business needs evidence of infringing activity to enforce the agreement. However, provided that the employer has proof that the worker started a directly competing organization or took a similar position with a local competitor, it may be possible to hold the worker accountable for the harm that they caused and their breach of the noncompete agreement. Many covenants not to compete include penalty clauses that impose a specific financial consequence for breaches. The courts can also award the former employers damages based on the practical impact that the unfair competition has had. Employers can continue integrating noncompete agreements into their contracts in Kentucky and can ask the civil courts to enforce them if they discover that an employee has violated the agreement. Having support when drafting, reevaluating or enforcing employment contracts can help businesses mitigate losses caused by non-compliant employees. Noncompete agreements can protect a company provided that they are valid and the company acts promptly to enforce them when necessary.

How should employers handle workplace harassment claims?

2025-03-11T08:56:42Z

Workplace harassment claims can cause problems for businesses. Handling these claims the right way helps protect your company and makes the workplace safer. Employers in Kentucky must follow both federal and state laws to deal with complaints properly and avoid legal trouble.

Create clear rules

Clear rules about harassment can prevent problems before they start. Your company’s policy should explain what behaviors are not allowed, how employees can report issues, and what actions will be taken if harassment occurs. Kentucky employers should follow both state laws and federal rules, like Title VII of the Civil Rights Act. Regularly training employees and managers can help create a respectful workplace.

Act quickly when complaints arise

If an employee complains about harassment, take action immediately. Ignoring the complaint can lead to legal trouble and hurt workplace morale. Assign a fair and neutral person to investigate the situation, interview witnesses, and collect evidence. Keep things private while ensuring the process is fair for everyone involved.

Take action if harassment happens

If your investigation shows that harassment took place, respond with the proper disciplinary action. This could include a warning, suspension, or even firing the person responsible. Employers should also think about updating policies or offering extra training to prevent future problems. Showing that you take harassment seriously can help protect your business if legal issues come up later.

Keep good records

Keeping detailed records is important when dealing with harassment claims. Write down all complaints, investigations, and the actions taken. Record training sessions and policy changes to show that your business follows the law. Having clear records can help protect employers if they face legal action.

Do not allow retaliation

Employees who report harassment should not be punished. Retaliation can lead to more legal problems for your business. Make sure employees know that reporting harassment will not lead to negative consequences. A fair and open process helps employees feel safe while also protecting your company. Handling workplace harassment claims properly helps keep your business safe from legal trouble and creates a better workplace for everyone.

Emergency Response Precedent Set In New Court Of Appeals Opinion

2025-03-13T15:45:55Z

Kerrick Bachert Attorney Matt Cook recently obtained a summary judgment on behalf of a local volunteer firefighter that resulted in a published opinion from the Kentucky Court of Appeals. In a matter of first impression in Kentucky, the Court of Appeals held that the volunteer firefighter, who was driving an ambulance to rush a critically ill patient to the hospital in an emergency situation, was entitled to qualified official immunity from suit. The Court held that the actions of the volunteer firefighter in driving the ambulance in an emergency scenario involved discretionary acts which precluded a negligence lawsuit against him for injuries sustained by an EMT that was working in the back of the ambulance who was injured while the ambulance was enroute to the hospital. A copy of the Court of Appeals’ opinion is available here. The decision will be an important precedent in future cases to protect volunteer service personnel in Kentucky as well as others involved in emergency responses.

How does your business structure affect taxes in Kentucky?

2025-01-10T20:59:04Z

Selecting a business structure affects many aspects of your company, including taxes. Each business structure comes with its own tax rules and responsibilities. Understanding these differences can help you make an informed decision for your business.

Sole proprietorships

A sole proprietorship offers the simplest business structure but has significant tax implications. In Kentucky, sole proprietorship income counts as personal income. The owner reports business income and expenses on their individual tax return. This structure avoids double taxation but also holds the owner personally liable for all business debts and taxes.

Partnerships

Partnerships follow similar tax rules as sole proprietorships. The partnership does not pay income taxes directly. Instead, individual partners report their share of profits and losses on personal tax returns. Each partner pays taxes on their income share, even if the partnership does not distribute profits.

Corporations

Corporations in Kentucky operate under different tax rules. A traditional C corporation pays corporate income tax at both federal and state levels. Shareholders then pay taxes on dividends, resulting in double taxation. However, corporations can access certain tax deductions and credits. S corporations avoid double taxation by passing income and losses directly to shareholders, who report them on personal tax returns.

Limited liability companies (LLCs)

LLCs provide flexibility in taxation. By default, single-member LLCs follow sole proprietorship tax rules, while multi-member LLCs follow partnership rules. LLCs can also elect to be taxed as corporations if that structure offers better financial advantages. In Kentucky, LLC members pay self-employment taxes on their income share.

Choosing the right structure

Choosing the best business structure requires understanding how taxes will impact your finances. Each option has unique benefits and challenges. By evaluating tax implications and long-term goals, business owners can decide on a structure that supports financial success.