A Study on Legal Protection of Trade Dress
|Keywords||Trade Dress Distinctiveness Secondary Meaning Identifying Source|
Trade dress is a legal concept that generally refers to characteristics of the visual appearance of a product or service, including the product’s packaging, decorating, shape and design or the service’s decoration, clothing, decorative style and so on. All characteristics of the visual appearance of a product are actually reflected in trade dress. In the beginning, trade dress was only functional. Later, the producers designed more novel and attractive trade dress to attract consumers to buy their products. Then trade dress has got the promotion function. Consumers gradually linked specific trade dress with a particular producer through continuous commercial use, so trade dress has the function of identifying source. Protection for source identification of trade dress is actually to protect the goodwill of producers which is formatted consequence of trade dress and a fair and competitive market based on it.Trade dress’s meaning is very rich, including the entire external performance of the product or service, expanding with the market competition and the development of science and technology continue to expand. Therefore, the protection of trade dress is very complicated. Trade dress with specific criteria can be used as trademarks, designs or works of art may be protected by the Trademark Law, Patent Law and Copyright Law. However, more trade dress cannot be protected by Intellectual Property Law in particular. The paper focuses on the protection of such trade dress. Paragraph2of Article5of the "Anti-Unfair Competition Law" defines counterfeiting well-known product’s packaging, decorating as a behavior of unfair competition, thus protecting part of trade dres The first part of the article introduces the concept of the trade dress, and defines the connotation and extension of trade dress based on American judicial precedents. Then it introduces the three functions of trade dress: basic function, promotion function and source identification function. At last, it analyzes the necessity of legal protection for trade dress based on the identification function, laying the foundation for further discussion.According to the necessity of protecting trade dress, combined with judicial precedents of America, the second part mainly analyzes the three legal protections as distinctiveness, non-functional character and vulnerability to confuse the customers.The third part describes the existing protection of trade dress under China’s domestic law, both from Intellectual property Law and Anti-unfair Competition Law. Besides from this, it points out that trade dress cannot be protected effectively.The last part provides suggestions related to the efficient protection of trade dress. Firstly, according to the characteristics of the trade dress as well as the our national condition that we are a statute law nation, the " Anti-Unfair Competition Law " should be adopted to protect the trade dress. Secondly, three conditions should be established distinctiveness, non-functional character and vulnerability to confuse the customers.