Trade Dress Protection Of Intellectual Property Research

1994,shanghai tianfuzhiguo dining room accused shanghai hongmofang limited corperation。The case made the whole society and the media attention, after two court hearings, the plaintiff's favor and eventually end. The case occurred, it can be said is just the tip of the iceberg, as rapid economic development, some people will think how short a time as possible to obtain as much wealth, so commercial, "Free Ride" More and more occured, This makes the trade dress protection under law circle of concern: such as the restaurant's decorative style, clothing and other related service personnel in the field can be protected by law?If can,which is the law?How to protect it?In this paper, the case for the pilot, in exploring the concept of commercial appearance, characteristics and significance of trade dress protection based on the current set of trade dress protection, more foreign trade dress protection on the last combined with Chinese own conditions, test Chinese trade dress made of intellectual property protection. This article is divided into four parts:The first part, an overview of trade dress and its protection. including (1) the concept of trade dress: trade dress is a foreign language, produced in the United States "Trade Dress" word. Our law does not officially use the concept. The author believes that trade dress can be defined as:trade dress can be identified consumer groups and give them a special visual experience, carrying the products or services value to the internal culture and the overall image of the appearance of significant features of commodity combinations. (2) commercial appearance characteristics: Generally speaking, the trade dress features include: integrity, recombination, economy.(3) the significance of trade dress protection: protecting consumers and encouraging distributors ;standardize the market order and promoting economic prosperity. (4) The basic model in trade dress protection of intellectual property law. Firstly addressed copyright law protecting trade dress, trade dress are subject to copyright protection must meet the "original" element, that is, a certain degree of creative features. Criteria for originality generally whether the work completed on investing skills, labor, capital, experience, Some countries regard trade dress as a practical art or design and carry out protection, while other countries as works of art have aesthetic value or the protection of architectural works. Second, the trade dress of patent law protection, need to have novelty and after licensing. Again, trademark law to protect trade dress as an object must meet the mark significant and non-functional basic requirements. (5) trade dress protection against unfair competition, anti-unfair competition law in China will be well-known product packaging and decorating as a business to protect the appearance. (6) Review of the protected mode, trade dress rights can look for different characteristics under commercial select the protection laws, more than the law of the overlap of the law applicable to the selection Biaozhun of blindness and disorder, also rely on a single law commercial legal system exists to protect the appearance of defects.The second part, the appearance of intellectual property rights of foreign business laws. Include (1) The United States trade dress protection legislation and jurisprudence in the United States, trade dress protection can be based on different conditions, by the Copyright Law, Patent Law, Trademark and unfair competition laws. The most important was undoubtedly the trademark and unfair competition law protection mode. (2) Japan's trade dress protection legislation, the Japanese commercial design registration for the judicial practice uphold the very cautious approach, Japan's "anti-unfair competition law" for trade dress protection focused on anti-counterfeiting. (3) EU countries trade dress protection legislation in the United Kingdom, is a typical phishing as unfair competition, a business looks fake encounter, the victim can ask the common law of "counterfeiting v." . British law is different in Germany since 1993 enactment of the "Law on the Protection of Trademarks and other marks (trademark)", the various signs all incorporated into with a legal regulation.The third part, our trade dresses protection on the Current Situation. Specifically address (1) Anti-Unfair Competition Law on the Legal Protection of the appearance of commercial industry. "Anti-Unfair Competition Law" does not explicitly use the "trade dress" term regulation of the content, but in article 5, paragraph 2 of expression of the "peculiar to well packing and decorating." Which made provisions against counterfeiting: "unauthorized use of well-known product-specific name, packaging, decoration, or use well-known products with similar names, packaging, decoration, resulting in a well-known goods of others confused, causing buyers to mistake that is well-known product. "But protected by limited product packaging and decoration on the well-known, and must have unique and can be confusing. (2) intellectual property law on trade dress protection, the Copyright Law Article 3, art is seen as one of the works protected by copyright, trade dress as a whole can be protected as works of art. Patent law on trade dress protection is limited to business method patent applications by the appearance, into a patented product be protected. China's Trademark Law of the commercial appearance of the standard is very limited. Trade dress protection of trademark law needs to be set up with the elements of trademark law: significant, non-functional, there is no conflict with other prior rights.The fourth part, China's trade dress protection of intellectual property Legislation. Include (1) China's trade dress protection legislation model selection, our well-known intellectual property law scholar Mr. Zheng Chengsi had a very vivid metaphor, he compared the anti-unfair competition law, water, and three special intellectual property law specification is the sea ice of the three icebergs, anti-unfair competition law plays a similar role basis. Thus, trademark and unfair competition law does not exist either-or phase-Croatian relations, but rather a mutually reinforcing, complementary relations with students. In contrast,Anti-Unfair Competition Law to protect a broader range of its specification, not to register for the element. Despite its narrow range of overcoming deficiencies in trademark legislation, but its intensity is far less than trademark laws protect the extent of regulation. (2) Trademark Law on Legislation of trade dress protection proposal, the first appearance of a clear business relationship with the general trademark, trade dress and followed by clarifying the relationship between the utility model (3) Anti-Unfair Competition Law for trade dress protection legislation Suggestions for Improvement: 1, anti-unfair competition law to expand the business scope of protection of the appearance of 2, revised standards for trade dress protection 3, integration of existing articles and norms.