Research On The System Of Trade Dress In United States

On August 6^th,2017,Chinese Supreme People's Court made the final judgment for the case regarding“jia duobao and wanglaoji”red packing box.In the same year,the legislature significantly revised the article 5.2 of China Anti-unfair Competiton Law which is related to famous product-specific packaging and decoration.Because of the promotion of legislation and jurisdiction,famous product-specific packaging and decoration have already become a heated social problem.The legal concept of“trade dress”in American legal system corresponds to the term“famous product-specific packaging and decoration”,but“trade dress”covers much more than that.Trade dress can be defined as the overall appearance of commercial activities,which has characteristics of comprehensiveness and integral.According to the related cases so far,trade dress can be classified into five classes:product packaging,service packaging,product design,business techniques and web dress.The classification of Trade dress is crucial.American courts treat different kinds of trade dress in different criteria and attitudes.In the lawsuit,the standard of proof depends on the specific kind of trade dress.For example,product packaging and service packaging may have the property of inherent distinctiveness,while product design does not.Product design must be proved that it has a secondary-meaning during commercial activities.Furthermore,by looking at the legislation and previous cases in the United States,we can observe that the current attitude of court towards trade dress is different from the past.Before,trade dress was considered as the same as trade mark.But now,trade dress has been acknowledged to have its individual uniqueness.Previously,Anti-unfair Competition Law was the principle to resolve trade dress and trademark cases.However,in 1946,the Congress passed the federal law--Lanham Act which replaced the trademark law in most of states.The Lanham Act is a milestone in the area of trademark protection.In the past,trade dress only contained product packaging.Then,service packaging and product design were also taken as part of trade dress.Since then,trade dress has been covering more and more objects,which makes courts recognize that trade dress is independent from trademark in some extent.Protectable trade dress needs to meet the criteria of distinctiveness and non-functionality,but the two criteria should have a certain order in application.Non-functionality is the primary necessary condition.Only the approval of non-functionality can the distinctiveness become meaningful.Aesthetic functionality has not been regulated by legislature in China,while it has been well protected in United States.Therefore,this thesis analyzes aesthetic functionality in depth,focusing on the difference between aesthetics and aesthetic functionality.Like lihood of confusion is not the requirement of trade dress,but it is the key for the owner to win the trade dress cases.In the trade dress infringement suits,likelihood of confusion is the core factor.If there is not any chances to cause likelihood of confusion,other factors?such as distinctiveness and non-functionality?will not be considered.In the academic field,China needs to well standard the term“trade dress”to prevent it from being protected by the intersection of intellectual property law.China should not define trade dress which was defined by law system of United State according to the background of legislation situation in China.On the legislative level,this paper suggests that China can adopt the legislation mode of complementary of trademark Law and Anti-unfair Competiton Law.On the legal practice level,courts should examine trade dress based on distinctiveness and non-functionality.Trade dress which can not be protected as registered trademark shall be regulated through article 6.1 of China Anti-unfair Competiton Law.