TRADEMARK PROTECTION FOR TRADE DRESS FOCUSING ON AESTHETIC FUNCTIONALITY
|關鍵字:||商業外觀;產品包裝;產品設計;美感功能性;防禦性美感功能性;trade dress;product packaging;product design;aesthetic functionality;defensive aesthetic functionality|
In recent years, with the tide of creativeness rising, many product packaging and product designs (collectively referred to as “trade dress”) are becoming increasingly ingenious. The trade dress can be protected through copyright and patent, but it is difficult to prove the existence of copyright, and the invalidation rate of patents is high, and thus, protection of copyrights and design patents is not as simple and easy as protection and enforcement of trademarks. Traditionally, a trademark registration is granted to protect specific words, characters, and graphics, and most manufacturers will not seek to register the product packaging or the product design as a trademark, and in the past, where manufacturers have applied for such registrations, TIPO has usually rejected these applications asserting that the product packaging or the product design lacked the required distinctiveness. It is perhaps time, now, to question whether this legal basis is sufficient to reject some of the more creative new trade dress being used by manufacturers. This thesis, by looking at practice related cases in the US, explores the development path and controversial background of the issue, namely using trademark registration to protect trade dress, in US history. As this thesis primarily discusses protection for ingenious and creative trade dress, utilitarian functionality is only briefly introduced, and the main focus is on discussion regarding aesthetic functionality. We hope that through discussion of the aesthetic functionality theory, we might be able to encourage TIPO to refine and clarify its reasons for rejecting trademark applications for trade dress, and to provide another possible defense to accused infringers.
|Appears in Collections:||Thesis|