Study On The Right Of Trade Dress

The concept of the Right of Trade Dress refers to the exclusive rights the merchant subjects are entitled to exert on certain trade dress. Even though we cannot find this kind of terminology in the statutes or judicial documents in the PRC,it has been presenting its significance in today's business society. After the 337 investigation was initiated to several Chinese enterprises by the U.S. International Trade Commission for'Trade Dress Infringement', more and more attention has been given to this new type of civil right. However, the lack of profound and systematic study on this topic is hindering our further comprehension of it. This dissertation tries to achieve a relatively comprehensive research in the domain of the Right of Trade Dress from different aspects, and the text can be divided into 5 chapters.Chapterâ… discusses the noumenon of the Right of Trade Dress, that is to say , the thing-in-itself to set forth the basic ground for further research. In this part, the author reviews how the term'trade dress'originated and where the Right of Trade Dress derived from, then to find a proper status for this new kind of civil right. The author insists that the Right of Trade Dress should be regarded as an independent type of intellectual property right and sums up the status quo of trade dress protection in statutory and judiciary domain in mainland China.Chapterâ…¡tries to discover the nature of the Right of Trade Dress. After reviewing the nature of civil rights, the author believes that our path of trade dress protection ought to be limited to establish an independent civil right, and that the so-called'legal benefits'should not be a proper way to achieve the aforesaid goal. The nature of the Right of Trade Dress largely depends on the nature of the specific benefits behind the right, so the analysis on so-called specific benefits make it clear that the Right of Trade Dress is a kind of property right and belongs to the civil right domain.Chapterâ…¢probes into the value of the Right of Trade Dress. It is vital to illustrate where the value lies when we try to bring in a new type of civil right, thus the author explores the legal and economic value of the Right of Trade Dress, and then points out the necessities and feasibilities in making it statutory. Chapterâ…£focuses on the issues arising from the practice about the Right of Trade Dress. Firstly, the author analyzes the two factors which make the trade dress protectable: distinctiveness and unfunctionality, while whether the trade dress has been registered is not necessary for its protectability. Secondly, the trade dress infringement and its redress are discussed, including the acts which constitute the infringement, the legal consequences of infringement and what measures the right owner to do to relieve his benefits.Chapterâ…¤dissertates the limitation for the Right of Trade Dress and the conflicts between this right and other kinds of civil rights. The main forms of the limitation for the Right of Trade Dress include'pre-use limitation'and'the exhausted of rights limitation', we should apply them appropriately to strive for a balance between the right owner and the public interests. As regards to the rights conflicts, the author analyzes how the Right of Trade Dress conflicts with the right of trademark, copyright and patent, then tries to find reasonable solutions for these different kinds of conflicts.