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June 17th, 2009 admin Leave a comment Go to comments

Wrappers Labels

Trade Dress

Trade dress refers to characteristics of the visual appearance of a product or its packaging (or even the facade of a building such as a restaurant) that may be registered and protected from being used by competitors in the manner of a trademark.[vague] These characteristics can include the three-dimensional shape, graphic design, color, or even smell of a product and/or its packaging.

hard">http://www.himfr.com/buy-hard_rock_cafe_shirt/">hard rock cafe shirtThere are two basic requirements that must be met for trade dress protection. The first is that those features must be capable of functioning as a source indicatordentifying a particular product and its maker to consumers. In the United States, package design and building facades can be considered inherently distinctivenherently capable of identifying a product. However, product design can never be inherently distinctive, and so such trade dress or other designs that cannot satisfy the 'inherent distinctivness' requirement may only become protectable by acquiring 'secondary meaning.' In other words, the mark may be protected if it acquires an association in the public mind with the producer of the goods.

Under the functionality doctrine, trade dress must also be nonfunctional in order to be legally protected; otherwise it is the subject matter of patent law. What is functional depends strongly on the particular product. To be nonfunctional, it cannot affect a product's cost, quality, or a manufacturer's ability to effectively compete in a nonreputational way. For example, color is functional in regard to clothing because that product is purchased substantially because of its color and appearance, but color is not functional on household insulation, which is purchased purely to be installed in a wall and is never seen.

United Kingdom

Trade dress can be protected as getup under the law of passing off in UK. Passing off is a common law remedy for protecting unregistered Trade Marks. Basically, passing off is connected with protecting unregistered Trademarks. Getup, packaging, business strategy, marketing techniques, advertisement themes etc. can also be protected under passing off.

United States

Logos, symbols, and names of products and companies are protected under trademark law. Although it has limits, trademark law, in the United States, through the Lanham Act, also protects slogans, phrases, packaging of products, and even the appearance of the product itself.

Marks may be classified for the distinctiveness: generic, descriptive, suggestive, arbitrary or fanciful. Marks that are deemed suggestive, arbitrary, and fanciful are entitled to trademark protection because their intrinsic natures to identify a particular source of a product. In comparison, generic marks are those that refer to the genus of which the particular product is a species, for example: aspirin, thermos. These marks are not protectable as trade marks because the number of such appropriate terms is limited and all merchants are intended to be equally allowed to use such terms to describe their own goods when competing for customers. Lastly, marks that serve only a descriptive function in relation to a product may be protectable under trademark law as inherently distinctive.

India

In view of the recent developments in trading and commercial practices and to give effect to important judicial pronouncements, a need for simplification and harmonization of trademark management systems was felt. The new Trade Marks Act, 1999, which came into force in September 2003 is the result of this realization.

The new legal definition of a trade mark under the Act consists of the shape of goods, packaging or combination of colors or any combination thereof. A package is now protected under the Act, which includes any case, box container, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper, and cork. Thus, the new definition of trademark in India broadly encompasses almost all the elements of trade dress under the US law.

Jurisprudence

Under the Indian trademark law, any distinctive and identifying mark, which is capable of distinguishing the goods and services of one owner from that of another, may be utilized as Trademark and such marks are afforded protection under the law. The Trade Marks Act, 1999 is a reproduction of the UK?? Trade Marks Act 1994 as we follow the English Trade Mark laws from the beginning. Unlike the United States Lanham Act, 1946 the English Trade Marks Act, 1994 and the Indian Act, 1999 do not have provisions like section 43(a) (of Lanham Act) to protect un-registered trade dress or allow registration of trade dress which qualifies the tests of distinctiveness and source identifier.

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