On Legal Protection Of Trade Dress

At first, business operators who use trade dress is for the main purpose of decorating andbeautifying the goods or services, in order to attract more consumers, so as to capture moremarkets, to gain the competitive advantage. However, when the market competition raged andmore operators packed into the market, the trademark whose main function is to identifysources cannot reflect the overall features of the goods or services, so that the expressions ofdistinctiveness of goods or services is limited, that make business operators need to find anew way of both attracting more consumers and helping to reveal its distinctiveness. Thus,operators is no longer passively waiting for consumers’ presence, but through the "outward"beautification of trade dress, they recommend their goods and services ‘"inner" quality toconsumers. When goods or service’s quality and price is approved, consumers will buildrelationships between the trade dress and the operator it represents.At this time, it has the similar identification function to trademark, qualified for the legalprotection. So trade dress and trademark have common legal basis; However, trade dress isobviously different from trademark in some ways, and these differences make the protectionof trade dress has its special constitutive requirements and standards.In recent years, trade dress owners in China are facing problems that in lack of theprotection system of trade dress the infringed trade dress can’t get legel remedies. We need tosystematically research the legal protection of trade dress in our country to improve thetrade dress protection system and adjust the interests of the right holder.The paper is divided into five parts.The first part introduces the basic concept of trade dress. Firstly, through exploring theevolution of the meaning of trade dress in American legal history and the expression of tradedress definition in authoritative writings, it is concluded that what is the concept of tradedress.Then it discusses the characteristics of trade dress itself and the differences withtrademark, also briefly introduces the types of trade dress,for further discussions below. The second part mainly discusses the theoretical basis of trade dress protection from thetwo aspects of realistic necessity and legitimacy.The third part expounds constitutive requirements and standards of the trade dress,dealing with “Distinctiveness” and “Non-functionality” requirements, emphasizing thedifference with trademark.The fourth part analyzes the way to construct the protection system of trade dress inother countries on basis of summarization of legislations and cases the United States, Canada,Germany and some international treaty, and whether they are suitable of our reference.The fifth part points out the dilemma of protection of trade dress under the framework ofprotection in our country, and then analyze which protection mode of trade dress is suitable,and in the final improvement suggestions about the protection of trade dress are given in suchprotection mode.