| Summary: | 碩士 === 東吳大學 === 法律學系 === 101 === What is Trade Dress? What is the content of the particular IP rights? What is its scope and requirements of protection? More important is how it has been used and applied in a trademark or related IP infringement lawsuit cases.
The U.S. federal trademark legislation was amended in 1946 (the “Lanham Act”). When in its amendment in 1988, it officially provided the protection of the unregistered trade dress in the Section 43(a). So, like the trademark infringement, at the federal level, trade dress infringement is governed mainly by the Lanham Act; while at the state level, it is governed by similar Intellectual Property statutes and various common-law doctrines.
Unlike the traditional word or design trademarks, trade dress is defined as “the total image and whole appearance of a product or service”. Trade dress protection is intended to protect consumers obtaining they need via the unique packing or appearance of a product or service from being confused by those similar to avoid damages.
Accordingly, this article studies and introduces the U.S.
trademark legislation regarding Trade Dress and five (5) important and influential infringement cases to develop its scope and requirements of protection, such as non-functional requirement, distinctiveness and secondary meaning. To acknowledge how these scope and requirements of protection have been actually used and properly considered in each of introduced infringement lawsuit cases.
The main purpose of this article is in a hope that the study results can be taken as a reference to the Taiwan IP field to hence achieve the same level of protection for Trade Dress as the U.S. does.
Moreover, there is a particular chapter (Chapter Five) used to introduce the present development and judgment direction of related Trade Dress lawsuit cases in China. Therefore, the second purpose of this article is to assist in obtaining more understanding on the latest progress of this Trade Dress issue in Mainland China.
Key Words: trademark, trade dress, infringement, Section 43 of the U.S. Trademark Law, non-functionality, distinctiveness, secondary meaning, Article 5-2 of the China Anti-Competition Law
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