What is “Trade Dress”?

On septiembre 16, 2010, in Branding, Industrial Property, Marks, by IPIBA

The “Trade Dress” is a legal term that has evolved quickly. In Argentina, it can be registered as a TM. Its main function is to protect the rights of consumers against products or services presented in a similar manner.

Trade Dress is the non-functional physical detail and design of a product or its packaging, which indicates or identifies the product’s source and distinguishes it from the products of others.

Trade dress includes color schemes, textures, sizes, designs, shapes, and placements of words, graphics, and decorations on a product or its packaging.  A trade dress is non-functional if, taken as a whole, the collection of trade dress elements is not essential to the product’s use or does not affect the cost or quality of the product even though certain particular elements of the trade dress may be functional.

The front, the shape or special non-functional architecture of some buildings can be protected as Trade Dress in many countries.

In the US, under section 43(a) of the Lanham Act a product’s trade dress can be protected without formal registration with the PTO. In relevant part, section 43(a) states the following:

“Any person who, on or in connection with any goods or services […] uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
(A) is likely to cause confusion, or to cause mistake, or to deceive […] as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such an act.”

 

This statute allows the owner of a particular trade dress to sue an infringer (a person or entity who illegally copies that trade dress) for violating section 43 (a) without registering that trade dress with any formal agency or system (unlike the registration and application requirements for enforcing other forms of intellectual property, such as patents). It is commonly seen as providing  “federal common law” protection for trade dress (and trademarks).

The “front” of  emblematic buildings can be protected as “trade dress” in comparative law.

 

1 Response » to “What is “Trade Dress”?”

  1. Betina dice:

    Excelente. Felicitaciones por el atículo. Como siempre los felicito. No sabía esto. Pueden registrarse como marcas?

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