The Study on the Distinctiveness of Trade Dress in American Law-a Compression with the Practice of Non-traditional Trademarks in Taiwan
Hsu, Tzu Han
|Keywords:||營業包裝;商標價值;識別性判斷基準;產品設計;產品包裝;第二意義;Trade Dress;Trademark Value;Distinctiveness Test;Product Design;Packaging;secondary meaning|
The purpose of this article is to elaborate the distinctiveness of trade dress in American law. While trade dress has the characters of trademark, it concerned particularly with the product presentation(the overall impression of the product). Both trade dress and trademark serve an identification function, as well as a marketing function. But trade dress covers various combinations of concrete and abstract subjects, which a trademark doesn't have. Do all the normal trademark rules apply to trade dress? The U.S. Supreme Court gave their opinions first in Two Pesos and later on in Wal-Mart case, both of which are not clear enough to fully address the issue of the distinctiveness of trade dress. The only guidance offered by the Supreme Courts on the issue of distinctiveness of trade dress is that the rules for trademarks may not be entirely applicable to trade dress. The focus of this paper are how the Supreme Court's decision affect trade dress law. What remains problematic is how case law has recently began to develop concerning the protection of new type of trade dress. The concept of non-traditional trademark in our Trademark Act is similar to trade dress in the US. What are the differences between the opinions of courts in the U.S. and those in Taiwan. The protection of trade dress in American law is mainly formed by the case, the opinion of the court has great influence on the significance of trade dress and the clarification of the protection connotation. Therefore, the author would like to find standards for the distinctiveness of trade dress through the analysis of cases regarding the meaning of trade dress distinctiveness, relevant factors, the point of time for determination. The author would like to address the impacts the opinions of the U.S. Supreme Court has on the lower courts, and make a compression with the practice of non-traditional trademark in Taiwan.
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