The trade dress protection
By Milena Tesser and Tiffanye Esteves de Queiroz
In a recent court decision, the food company Ritter was ordered to pay Queensberry compensation for using a jam jar similar to the one that have been used by Queensberry since its foundation – a package that had been designed to be a distinctive feature of the Queensberry jam. The 1st Corporate Law Chamber of the Court of Appeals of São Paulo ruled that Ritter engaged in unfair competition when it copied Queensberry’s package, causing consumer confusion.
What is interesting is that this decision was not intended to protect the brand or the patent or the industrial design itself. This decision was intended to protect the trade dress, which can be defined as the characteristics of the visual appearance of a product or service, including but not limited to package, shape, color, textures and even the unique store’s design. It is the visual appearance of that product/service or establishment that is capable of identifying the source of such product/service or establishment independent of any trademark or the trade name used.
Unlike the United States, trade dress is not yet regulated by the Brazilian industrial property laws. Nevertheless, Brazilian Courts and jurist have been dealing with this legal concept: it has been widely accepted that no one is allowed to profit from the visual appearance of someone else’s products and services.
Our recommendation is that the protection of a product’s or service’s trade dress must be a continuous effort, which must encompass not only the registration of trademarks but also a uniform treatment of the shape, color, packaging and other features, affording distinctiveness and allowing that any potential infringement is promptly stopped and compensated.