Trade Dress Protection Under Anti-unfair Competition Law

Generally speaking, trade dress can be defined as the overall appearance or feature of products or services provided by relevant market entities. In the legal system of China, trade dress could be treated as “package or decoration” prescribed by second paragraph of article 5.2 of China Anti-unfair Competition Law. In order to attract the consumers and enhance competitive power within the fierce competitive marketplace, market entities tend to create and adopt unique package, design and decoration for their products or services. With extensive and continuous promoting and advertising, above-mentioned package or decoration gradually has certain well-knownness and distinctiveness, which reveal a kind of legally protectable interests and should not be copied or imitated by counterfeiters without approval. Thus, perfecting trade dress protection is necessary and important.Article 5.2 of China Anti-unfair Competition Law provides, “a business operator shall not harm his competitors in market transactions by using for a commodity without authorization a unique name, package, or decoration of another’s famous commodity, or using a name, package or decoration similar to that of another’s famous commodity, thereby confusing the commodity with that famous commodity and leading the purchasers to mistake the former for the latter.” There are a lot of disputes about the application of the above-mentioned article because of its broad definition. Most available literature and discussion focus on the definition and multiple protective ways of trade dress and how to amend the laws, instead of deepening the understanding the protection mechanism under current Anti-unfair Competition Law and discuss the proper protection of trade dress, which means protecting the legal interests of trade dress owner is compatible with safeguarding fair and free competition.This paper based on appropriately interpretation and application of article 5.2 of China Anti-unfair Competition Law. Firstly, qualified trade dress is a kind of protectable legal interests owned by relevant market entities. Its protection mechanism should be different from that of intellectual property rights, such as trade mark rights and copyrights.Secondly, the discussion will be focused on the trade dress protection mechanism. “Well-knownness” is the basic requirement needs to be reached. In addition, as a kind of commercial marks, protectable trade dress needs to reach the requirements of distinctiveness and non-functionality. Above-mentioned requirements make sure that public domain is not been illegally occupied and appropriated thereby encouraging free and fair market competition.There might exists overlapping in the application of requirement of well-knownness and requirement of distinctiveness, but these requirements are based on different systematic design and has a certain order in application. Only after the well-knownness having been approved, showing the existence of legally protectable interests, the requirement of distinctiveness need to be considered. The requirement of non-functionality is designed for a special kind of trade dress named product design.In conclusion, this paper tries to give a reasonable approach to analyze trade dress protection mechanism and applies China Anti-unfair Competition Law to resolve the legal disputes regarding trade dress. Plaintiff shall carefully define its trade dress and prove its legally protectable interests which should be protected by China Anti-unfair Competition Law. Based on the purpose of China Anti-unfair Competition Law, protecting lawful rights and interests and safeguarding fair and free competition, courts shall analyze whether the legally protectable interests claimed by plaintiffs reach the requirements of well-knownness, distinctiveness and non-functionality.