Protection Mode For Trade Dress

Trdae dress, initially created by the the United States Supreme Court during their cases, fails to appear in the statutory definitions of our law, and now it refers primarily to the overall image of the product and service to the consumers. Trade dress contains a wide range of elements, in addition to product packaging, shape, also includes shops overall decorating style, and even special marketing tools. The elements of these goods or services, because of their own characteristics and long- term use, can serve as a source identifier of the goods and services in the market. Consequently these elements could be protected by law as the trade dress.As a new concept of intellectual property field, trade dress have been enjoyed the recognition among many developed countries by law or cases, such as United States, United Kingdom, Europe, Australia, Japan. And also they have given the independent protection with the different kinds of laws. Judging from ours existing laws, the trade dress has not to be protected as a independent object. Although the Copyright Law, Patent Law, Trademark Law and the Anti-Unfair Competition Law can provide a certain degree of protection to the trade dress, but these often involve only a part of the trade dress, not providing a complete protection for this type of object. Furthermore, the protection, compared with other countries, is fairly weak. So we should fully referent foreign experiences and establish our own protective system firstly to enhance our country's protection level of trade dress, and protect the rights of businesses and consumers. In addition, it will help to merge with the world, reduce the fight about trade dress between our enterprises and other countries' in international trade.The article is divided into three parts. It's maily introduces the advanced experience of the trade dress protection and refer to the overseas advanced experience. The study aims to provide suggestions for the choose protection mode of trade dress.The first part of the article introduces the basic theories of the trade dress. It mainly describes the basic concepts and the nature of the trade dress, introduces the types of the trade dress, and compares the similarity concepts of our currect law with the trade dress. This section is intended to clarify the basic knowledge of the trade dress and layed the foundation for following discussion.The second part of the article introduces the foreign protection mode of the trade dress. Now tie international community protects trade dress mainly by two modes: Trademark law mode and Anti-unfair competition law mode. It mainly introduces the countries that use either of the modes and the rules of each mode, and compares the two modes. This section intended to introduce the advanced experience to guide the establishment of protection mode in China.The current situation of the protection of the trade dress in our country was mainly discussed in the third part of the article. At first, it consists of the current law on the protection of the trade dress, introducing the legal basis and protected conditions, and analyzing the shortage of the protection. Because of the existing limitation, academics generally believe that it is needed to improve the protection of the trade dress. Finally, the article introduces different viewpoints of scholars on the protection mode, and contains my personal opinions. It's hoped that the article could give some inspirations to the research of the protection mode of the trade dress.