On Legal Protection Of The Distinctiveness Of Trade Dress

Trade dress is the whole image of goods and services, which includes not only the color, style, packing of the goods and the decorations of the service industry, but also the shape, size, texture of the product itself, sometimes even including the sales techniques. From the point of visual impression, trade dress and trademark are similar to some extent. Through the trademark theory, some Chinese scholars tried to analyze the structure of trademark in terms of semeiology, and they considered trademark as a sign which is fixedly used by the manufacturer and service supplier on their products or services to mark the information of these goods and services, hence these symbols became the information carrier of the goods and services. It is the same with trademark, trade dress also can be viewed as a symbol to transfer its inner information to the consumers. A successful businessman can make the producer and the consumer communicate with each other in effective way.To understand the distinctiveness of trade dress, we should firstly define trade dress and compare it with the relative concepts such as trademark, industrial design, which can help us comprehend the meaning of trade dress. After such comparison, secondly we analyze the features of trade dress, e.g. integrity (which is the overall appearance of goods), independence (which means consider trade dress as a special object to protect), distinctiveness and so on. The original aim of trade dress is to attract the consumers'attention by decorating the goods and services of the suppliers in order to give the consumers a beautiful and comfortable impression, in which way to stimulate the consumer to accept their products and goods. With the wide use and sale, the public gradually established the connection between the trade dress and the goods or services, and in their opinion, the main function of the trade dress now is not the decoration of the goods or services but the distinctiveness of the source of them. Therefore trade dress like trademark acquired the distinctiveness, that is, acquired the secondary meaning. Once the distinctiveness of trade dress came into being, other manufactures with ulterior motives began to copy these appearance symbols which should belong to the manufactures who create them, and in this way these manufactures with ulterior motives can survive and profit in the intense competition. Under such circumstance, both the interest of real manufactures and consumers will be damaged, while the imitator will possibly get profit from the imitation, so, it is necessary to accept the distinctiveness of trade dress in legal way to protect it.As mentioned above, although trademark is composed of symbols, it not only expresses the content of itself to the public, but also represents the goods or services of the manufactures and providers and transfer the inner information it carries to the public. Without the products or services it represents, trademark is valueless. From this, we can say that trademark reflects the relationship of interest, and this kind of relationship is formed by the market's continuous connecting the symbol with the goods or services. Trade dress is composed of the color, style, packing of the goods, or the decorations of the service industry, as a matter of fact it is composed of symbols. By the same reason, if there are inner characteristics in trade dress itself or these characteristics are the second meaning acquired by wide use, this trade dress can represent the goods or services of the providers by itself, in this way the trade dress formed the similar distinctiveness as the trademark, that is, the public can immediately associate the trade dress with the manufactures or the service providers once they see the trade dress. As a result, there is great commerce value in trade dress, at the same time there are possibilities of being imitated. So there is no reason that only trademark is protected by law, whereas let trade dress be copied instead of being protected.Compare the legislation of various country, the reasons to protect trade dress are different. The countries of Anglo-American law system protect trade dress in order to avoid the outcome of market confusion; while the countries of continental law system aim at protecting commercial achievement, and they give trade dress additional or accessional protection. Moreover, to different trade dress, the protection mode toward their distinctiveness is different. The protection modes of industrial design are:1 Copyright Law; 2 Patent Law; 3 Trademark Law. As for the storefront decoration and service manner, they are often protected by Anti-Unfair Competition Law. These laws give the exterior design of the goods or services protection from different starting point, and just because of this reason, the protection mode of the distinctiveness of the trade dress varies from country to country. Some are protected under trademark law, some are under anti-unfair competition law, and others are under special law. But by comparison of the different lawmaking system in various countries, the legislation body of these countries doesn't just adopt one mode of them to protect trade dress, but sometimes overlapped.At first there is no stipulation about the protection of trade dress distinctiveness in the current Chinese law system, even at present there is no the terminology of trade dress in the intellectual property law system. As our country gets more and more involved in the foreign trade development, the legislation body gradually touched on the trade dress, for example, in the Anti-Unfair Competition Law of 1994 there are rules about the protection of well-know goods; in the Trademark Law of 2001, there are explicit rules of bringing tridimensional trademark into the registration range, also there are non-functional principles and secondary meaning system. All these rules can be viewed as the trade dress protection. Though the trade dress can be protected by the dispersive law, the conflicts between law and law lead to the dilemma of protecting trade dress, because in China the protection of trade dress only limited to the well-known goods and the scope of well-known goods is not clear. Furthermore, there exist many conflicts in the intellectual property structure, such as system clash, the enlarged protection scope and so on. Hence, it is necessary to learn from others'experience to protect the distinctiveness of trade dress.