The visual impression produced by the sum of all elements used in packaging or displaying goods or services for sale gives the product a distinctive and recognizable appearance. Trade dress can be used as a trademark to obtain legal exclusive rights.
Trade dress, according to the definition of American precedent, refers to "the overall image or overall appearance of a product". This trade dress can include "size, shape, color or color combination, structure, graphics, and even special sales skills". According to this background, trade dress can be regarded as a design. According to the thinking of European and American legislation, patents, trademarks and even copyright laws can protect designs; However, legislation should avoid the overlap of the three kinds of protection. From the perspective of economics, it is particularly important to clarify this kind of legislation, which is related to the effectiveness of market allocation and the fundamental creed of free competition.
I. Definition of trade dress
Trade dress (temporarily translated as "product appearance and packaging") is a legal term, which generally refers to the visual appearance characteristics of products or their packaging by which consumers identify the source of products, and its connotation is an intellectual property similar to trademark rights. Its legal protection is based on Article 43 (a) of the United States Trademark Law:
"Anyone who uses any words, words, names, marks, icons or their combinations in any commodity or service or any commodity container in business, or any false source indication, false or misleading description or factual statement, which:
(a) It may confuse, misunderstand or deceive people about the affiliation, connection or joint relationship between users and others, or the source of their goods, services or commercial activities, or the relationship sponsored or approved by others, or
(b) making false statements about the nature, characteristics, quality or origin of their own or others' goods, services or commercial activities in commercial advertisements or promotional activities,
In any of the above cases, anyone who thinks that he has suffered or is in danger of suffering from the above acts may file a civil lawsuit against him. 」
Although registration approval is not a requirement protected by law, registering trade dress in the main registration or supplementary registration does have the following benefits:
1. Register a trade dress in the master register. The registered trade dress is deemed to have been used in the United States, and the ownership of the trade dress can be announced to the whole country to prevent others from using or registering the trade dress.
2. After five years of registration, the registrant's trade dress can obtain "undisputed status". This status can exclude others from objecting to the registration of trade dress in various ways; In addition, in court proceedings, this position can reduce the burden of proof of trade dress registrants, and can also persuade others to prevent others from using the trade dress without court procedures.
3. Although registered in the auxiliary registration, it can not enjoy the benefits of the above-mentioned main registration, and its legal protection effect is limited, but the auxiliary registration still allows the registrant of trade dress to claim a certain degree of protection in other countries.
Two. Requirements for registration/protection of trade dress
As mentioned above, in order for Pan >: to obtain registration, or to claim rights protection based on the above-mentioned American trademark law, trade dress must meet the following two requirements:
(1) doesn't work.
The so-called functionality, in the application of trade dress, refers to the design and characteristics of trade dress (including shape, color, material, etc. ) is indispensable for the use of designated goods in the market. Based on the concept of fair competition in the market, giving this kind of functional trade dress exclusive rights will affect and hinder the fair competition of this kind of goods. This definition shows that when judging whether a trade dress is functional, it must be based on the goods it specifies or uses.
(2) significance.
Trade dress must make relevant consumers know the source of the goods or services they recommend and distinguish them from other people's goods or services.
With regard to product design beneficial to trade dress, the opinion of American courts is that product design does not have inherent distinctiveness, so it must be proved that the use of product design has enabled consumers to distinguish the source of goods or services, obtain "second meaning" and produce identifiability.
[1] Trade dress-Wikipedia, a free encyclopedia,/portals/1/web _ tw/knowledge _ center/infringement _ case /publish-9 1.htm.
[5] Basic principles of trade dress protection-eckert Shermans/file/pdf/publications/trade1.htm
What is editorial fashion? what
Editorial pictures are the kind of photos attached to magazine articles to increase their appeal, understanding or artistry. The editing fashion here is actually a fashion picture of Rations magazine.