New Research On Legal Protection Of Trade Dress

Trade dress originated in the United States and in the United States fairly matured; there are already quite a wealth of practical jurisprudence. Despite China's Trademark Law and anti-unfair competition law are also involved in some of the content of trade dress protection, but in whole, trade dress protection awareness is rather dismal. In particular, in recent years, in domestic disputes relating to trade dress infringement gradually emerge, while in the export of China's foreign trade disputes due to foreign trade dress infringement are increasingly frequent. As a result, the lack of China's trade dress law comes out. Not only the domestic disputes can not be judged in the appropriate law, and but also in the foreign-related disputes, some of our business as a defendant, are very passive. Therefore, how to change the current predicament, and modify the relevant laws of China to establish a system so that trade dress protection of the law in this area of China with the world, become urgent and of great significance. I believe that only if Chinese enterprises own trade dress protection is strengthened, it can safeguard our market operators to provide the legal basis for their legitimate rights and interests and can strengthen their awareness of protecting our intellectual property rights to prevent infringement of its trade dress or to avoid the violation of other held by the appearance of legitimate business to provide a clear warning level. In addition, it also has significance for Chinese enterprises in entering the international market.Based on this, this article from a comparative law point of view, study and analyze the U.S. trade dress law, drawing on the success of its U.S. experience, combined with the legal protection of China's commercial appearance of reality, the appearance of the content business to be explored with a view to build our country's trade dress of legal protection system.According to the U.S. judicial practice, that the trade dress is total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques. In a sense, trade dress is a trademark, with instructions from different sources with the role of commodities. But not all of the trade dress are protected by law, only with certain conditions, or have certain elements in order to be protected. Therefore, the plaintiffs believe that trade dress infringement, should prove three basic conditions:1. distinctiveness; 2. Non-functional; 3. Likelihood of confusion. Is generally believed that the U.S. system, the legal basis for trade dress of "Lanham Act", but I believe that the law system of United States which based on case law, therefore it can not simply say the legal model of trade dress law in the U.S. is the trademark model, and its essence is the basis of jurisprudence in the use of a number of anti-unfair competition law and trademark law combined model.The so-called stones from other hills may serve to polish jade.I analyzes the status quo of protection of trade dress in China, and focus on analysis of the relevant provisions of the anti-unfair competition law and trademark law about trade dress.It found that the existing law are inadequate. Although our anti-unfair competition law provides that "unique product packaging, decoration," and there are provisions "three-dimensional mark" in the Trademark Law. Indeed the two look similar with trade dress, but can not contain the meaning of trade dress. So I believe that our laws should clearly define the meaning of trade dress, and establish the trade dress law system. Then the system should be placed below or legislated separately? In my opinion, not breaking the existing legal system, we can learn from the U.S. model that the system of trade tress law mainly placed under the Anti-Unfair Competition Law, combined with the Trademark Law. Because China's law is statutory law, different from the United States, we can turn the U.S. experience in judicial practice, conditionally into the corresponding provisions of the law in our country.