Trade dress: trade dress
Visual impression created by the totality of all elements used in packaging or presenting a good or service for sale, and which gives the product a distinctive and recognizable appearance . A trade dress may acquire legal exclusivity as a type of trademark.
Trade dress (Trade Dress), according to the interpretation of U.S. jurisprudence, refers to "the overall image or overall appearance of the product." This kind of trade dress can include "size, shape, color or combination of colors, structure, graphics, and even special sales techniques." According to this meaning, trade dress can be regarded as a design. According to European and American legislation, patents, trademarks and even copyright laws can protect designs; however, legislation should avoid overlapping of the three types of protection. From an economic perspective, such legislative clarification is particularly important, as it relates to the effectiveness of market allocation and the fundamental tenet of free competition.
1. Definition of Trade Dress
Trade Dress (tentatively translated as "product appearance and packaging") is a legal term that generally refers to the visual appearance of the product by which consumers can identify the source of the product. The appearance features or its outer packaging are intellectual property rights similar to trademark rights. The source of its legal protection is based on the provisions of Section 43(a) of the U.S. Trademark Law (Lanham Act):
"Any person in connection with any goods or services, or any Commercial use of any words, words, names, marks, icons or combinations thereof on product containers, or any false source indication, false or misleading description or representation of facts, which:
(A) Causing confusion, misunderstanding, or deception regarding the affiliation, association, or alliance between the user and others, or the source, sponsorship, or approval of the user's goods, services, or business activities by others or
(B) misrepresent in commercial advertising or promotion the nature, characteristics, quality or geographical origin of its own or that of others’ goods, services or commercial activities,
In any of the above circumstances, any person who believes that he has suffered damage or is in danger of suffering damage as a result of the above-mentioned conduct may file a civil lawsuit against him. ”
Although Trade Dress does not. Approval of registration is a requirement for legal protection, but Trade Dress does have the following benefits after being registered in the Principal Register or Supplemental Register:
1. Register in the Principal Register If a Trade Dress is registered, the registrant's Trade Dress will be deemed to have been used in the United States, and the Trade Dress ownership can be announced nationwide to prevent others from using or registering the Trade Dress.
2. After 5 years in the main register, the registrant’s Trade Dress can obtain an “incontestable status”. This status can exclude others from disputing the registration of Trade Dress in various ways; and in court proceedings, this status can reduce the burden of proof on the registrant of Trade Dress, and can also quickly convince others to prevent the registration of Trade Dress without going through court procedures. Others use this Trade Dress.
3. Although registered in the auxiliary register, you cannot enjoy the benefits of the above-mentioned primary registration, and its legal protection is limited, but the auxiliary registration still allows Trade Dress registrants to assert rights in other countries to receive a certain degree of protection.
2. Registration requirements/right protection requirements for Trade Dress
As mentioned above, in order for Trade Dress to obtain registration, or obtain the ability to claim based on the above-mentioned U.S. Trademark Law To protect the stipulated rights, Trade Dress must meet the following two requirements:
(1) Non-functional (non-functional)
The so-called functionality means that under the use of Trade Dress, It means that the design and characteristics of the Trade Dress (including shape, color, material, etc.) are necessary or indispensable for the use of its designated products in the market by competitors. Based on the concept of fair competition in the market, giving this functional Trade Dress exclusive rights will affect and hinder fair competition among peers in the competition for this type of product. This definition shows that when judging whether a Trade Dress is functional, the goods it is designated or used must be the basis for judgment.
(2) Distinctiveness
Trade Dress must enable relevant consumers to recognize the source of the goods or services it commends and to be able to compare it with other people's goods or services. Make a distinction.
Regarding the trade dress claim, the U.S. court held that the product design is not inherently distinctive, so it is necessary to prove that the product design has been used for consumption. It can be used to distinguish the source of goods or services and obtain "secondary meaning" to create identification.
[1] Trade dress - Wikipedia, the free encyclopedia, /Portals/1/web_tw/Knowledge_Center/Infringement_Case/publish-91.htm
[5]Fundamentals of Trade Dress Protection - Eckert Seamans /file/pdf/publications/traded1.htm
What is editorial fashion? What
Editorial pictures are the kind of photos that accompany magazine articles to increase the appeal, understanding or artistry of the article. The editorial fashion here is actually the fashion pictures distributed in magazines.